Reasons for decision
George Court,
complainant,
and
John Grant Haulage Ltd.,
respondent.
Board File: 27121-C
Neutral Citation: 2010 CIRB 498
March 10, 2010
The Canada Industrial Relations Board (the Board), composed of Mr. Graham J. Clarke, Vice-Chairperson, sitting alone pursuant to section 14(3) of the Canada Labour Code (Part II - Occupational Health and Safety ) (the Code) has considered the above-noted complaint.
A hearing was held in Toronto, Ontario, on July 14 and 15, 2009.
Appearances
Mr. George Court, on his own behalf; and
Mr. Harvey Capp, Q.C., for John Grant Haulage Ltd.
I - Overview
[1] On October 24, 2008, the Board received a complaint from Mr. George Court (Mr. Court) pursuant to section 133(1) of Part II of the Code.
[2] Mr. Court alleged that his employer, John Grant Haulage Ltd. (JGH) had terminated his employment as a result of his refusal to perform unsafe work, in contravention of section 147 of the Code.
[3] Mr. Court alleged that JGH suspended him and sent him home on July 11, 2008, rather than conduct the safety investigation mandated by section 128 of the Code.
[4] Mr. Court also alleged that JGH refused to provide him with a letter of termination, but rather only read the contents of the letter to him when he was terminated on July 28, 2008. Mr. Court alleged a violation of section 147.1(2) of the Code in this regard.
[5] JGH took the position that it suspended and later terminated Mr. Court because of his refusal to drive his tractor-trailer on July 11, 2008, coupled with his alleged falsification of documentation to bolster his allegation of unsafe work conditions.
[6] Mr. Court’s bargaining agent, Teamsters Local Union No. 879 (Teamsters), was initially advised of Mr. Court’s complaint. Mr. Court has a concurrent duty of fair representation complaint against the Teamsters pending with the Board related to numerous grievances he filed against JGH.
[7] When Mr. Court took exception to the Teamsters having any involvement in this complaint, legal counsel for the Teamsters advised the Board they would not participate any further.
[8] JGH argued at the hearing that Mr. Court had no “reasonable cause” under section 128 of the Code to believe danger existed and that he had, moreover, elected to have the matter dealt with under his collective agreement. Mr. Court had filed a grievance on July 11, 2008. The Teamsters withdrew that grievance on July 28, 2008, the same day that JGH formally terminated Mr. Court’s employment.
[9] The Board has concluded that JGH violated the Code when it disciplined Mr. Court. These reasons explain the Board’s decision.
II - Facts
[10] JGH is a dry bulk carrier transporting materials such as cement and resins. JGH owns its own tractors and trailers and employs approximately 85 drivers.
[11] JGH has a collective bargaining relationship with the Teamsters.
[12] A requirement of Ontario’s Highway Traffic Act (R.S.O. 1990, c. H.8) is that drivers complete what is called a Daily Log (Log). The Log tracks the hours when the driver is i) off duty, ii) on duty but not driving, or iii) driving. The Log indicates the locations where daily deliveries are made. It also details when the driver and the vehicle are present in JGH’s yard, as well as any site delays that might occur.
[13] The driver writes in the Log any maintenance issues with either the tractor and/or the trailer.
[14] Drivers also complete a separate document called the Daily Vehicle Inspection Report (Inspection Report). This document has three pages: the top white page is for JGH, the second page goes to the driver and the third page is kept in an inspection book that stays in the tractor.
[15] The Inspection Report utilizes pressure sensitive paper so that information written on the first page is automatically copied to the second and third pages.
[16] At the end of a shift, the driver leaves the top copy of the Inspection Report in JGH’s maintenance office so that maintenance can consider what work, if any, needs to be done on either the tractor or the trailer.
[17] The driver conducts both a pre-trip and a post-trip inspection and writes down any comments on the Inspection Report. Comparable information may also appear in the Log.
[18] JGH hired Mr. Court on February 5, 2008. Mr. Court had been working as a tractor-trailer driver for approximately eight years.
[19] Mr. Court passed his probation period under the collective agreement in March, 2008.
[20] On July 10, 2008, Mr. Court drove tractor 1316 and used trailer 851.
[21] On the July 10, 2008 Log, Mr. Court wrote about a maintenance issue with the tractor’s windshield wipers as well as the signalling lights on the trailer. There was also a notation about the tachograph card not working. The Log made no mention of any problems with the tractor’s air conditioning or speedometer.
[22] Mr. Court also completed the Inspection Report. The parties do not dispute that the first entry reads “wipers not cleaning window.” Two lines further down a second entry states “signals on trailer not working post trip.”
[23] Documentation submitted by JGH, and confirmed by its Director of Maintenance, Mr. Horace Ellens, indicated that repair work was done on the wipers of tractor 1316 on July 10, 2008.
[24] The key point in dispute between Mr. Court and JGH has to do with whether Mr. Court made surreptitious additions to the July 10, 2008 Inspection Report on the morning of July 11, 2008.
[25] The testimony about what occurred on July 11, 2008 is impossible to reconcile. The versions put forward by JGH’s witnesses and by Mr. Court cannot both be accurate. They are not merely different interpretations of the same event.
[26] Rather, the Board is obliged to determine which version accurately describes the events of July 11, 2008.
A - JGH version of events on July 11, 2008
[27] JGH’s general manager, Mr. Ralph Shepley (Mr. Shepley), testified that dispatch informed him on the morning of July 11, 2008 that Mr. Court had refused to drive tractor 1316. Mr. Shepley ordered Mr. Court to do a pre-trip inspection and get to work. Mr. Shepley testified he told Mr. Court that a refusal to work would be grounds for dismissal. Mr. Court advised Mr. Shepley that he could not force him to “work unsafe” and that the air conditioning and the speedometer on tractor 1316 had not been working the day before.
[28] Mr. Shepley testified that Mr. Court refused to do a pre-trip inspection which would have verified the condition of the air conditioning and the speedometer.
[29] Mr. Shepley asked Mr. Court to get the inspection book from tractor 1316 after Mr. Court indicated that he had noted the air conditioning and speedometer problems the day before on the Inspection Report. One of the three copies of the July 10 Inspection Report would be found in that book.
[30] Mr. Shepley testified that Mr. Court took longer than expected to return with the Inspection Report book. Mr. Shepley testified that the July 10 Inspection Report in the book had been altered. Mr. Shepley verified with the Director of Maintenance, Mr. Ellens, who advised that Mr. Court had gone to his office, retrieved the top copy of the Inspection Report (JGH’s copy), left his office for a couple of minutes and than returned with the top copy. Mr. Ellens testified he noticed that additions had been made to the top copy of the Inspection Report. He added his own handwritten notation confirming the additions to his copy of the Inspection Report right after Mr. Court left his office area on July 11, 2008.
[31] Video cameras on JGH’s premises had captured Mr. Court as he went to Mr. Ellens’ office, left holding certain materials, and than returned a few minutes later.
[32] Mr. Shepley testified that the only reason Mr. Court would have gone to obtain the top copy was so that he could ensure that all three copies contained the same altered information. By contrast, Mr. Ellen’s copy was the only one with his handwritten notation since he did not have the second and third pages of the July 10 Inspection Report.
[33] Mr. Shepley called in the Teamsters’ Chief Steward, Mr. Geoff Seaton, and advised him of the events. Mr. Shepley also advised Mr. Seaton of the repercussions of Mr. Court refusing an order to work. Mr. Shepley decided, after speaking with Mr. Seaton as well as JGH’s owner, to suspend Mr. Court pending investigation. Mr. Seaton immediately escorted Mr. Court off the property. JGH also provided the Teamsters with an “employee incident report” about Mr. Court. Mr. Seaton signed and acknowledged receipt of that document.
[34] Before he left JGH’s premises on July 11, 2008, Mr. Court submitted a grievance which stated in part:
I feel I am being unjustly and harassed treated [sic] by the company because they will not give me a truck with A/C as per our contract - they are trying to force me to drive 1316 which has no A/C and the speedometer does not work. I would like the company to stop trying to force me and harassing me to drive the truck. Everyone else gets a truck with A/C.
(underlining in original)
[35] Article 17.8 of the collective agreement does mention air conditioning in JGH trucks though the parties differ on the article’s proper interpretation. That interpretation is ultimately not relevant to this safety complaint.
[36] Mr. Shepley testified that the wipers for tractor 1316 had been repaired as a result of the notation Mr. Court made in the Inspection Report on July 10, 2008. Mr. Shepley also indicated that another employee tested tractor 1316 later that day and found that the air conditioning worked as did the speedometer.
[37] Mr. Shepley testified that if the speedometer had not been working halfway through the day on July 10, as alleged by Mr. Court in his testimony, then there is no reason that notation could not have been put on the Inspection Report and the Log. According to Mr. Shepley, at the time when Mr. Court allegedly discovered the speedometer was not working, Mr. Court had returned to JGH’s premises and could have easily raised it in person.
[38] On cross-examination, Mr. Shepley did not deny that he had told Mr. Court twice that his continued refusal to drive would lead to termination.
[39] Mr. Ellens testified why he signed and dated the top page of the July 10, 2008 Inspection Report that Mr. Court had taken out of his office temporarily. In Mr. Ellens’ view, Mr. Court had looked “sheepish” when returning the document. He noticed immediately when Mr. Court returned the document that it now contained written additions about the air conditioning and the speedometer.
B - Mr. Court’s version of the events of July 11, 2008
[40] Mr. Court alleged Mr. Shepley told him to take tractor 1316 and start his daily delivery without doing any pre-trip inspection. Mr. Court advised Mr. Shepley that he was invoking his right to refuse unsafe work and asked for a different tractor.
[41] Mr. Court testified that July 10 was a hot day and that the air conditioning in tractor 1316 was not working. Hot air was blowing on him as he drove. He felt superheated and dehydrated. He testified he almost fell asleep at the wheel. When he got home he had a rash on his back. He decided not to drive tractor 1316 again. Mr. Court also testified his speedometer had stopped working roughly halfway through the day on July 10. At the end of his shift, Mr. Court completed both the Log and the Inspection Report.
[42] Mr. Shepley had asked Mr. Court to get his Inspection Report book out of tractor 1316. Because the three pages of the Inspection Report are not always legible, Mr. Court also went to look at the first page of the Inspection Report which was in Mr. Ellens’ office. Mr. Court satisfied himself that all three pages of the document were the same and that everything written on the first page had properly transferred to the third page which was in the Inspection Report book.
[43] Mr. Court testified that Mr. Shepley sent him to wait in the lunch room while the Teamsters’ Chief Steward, Mr. Seaton, met with the employer. Mr. Shepley later informed Mr. Court he was suspended pending investigation. According to Mr. Court, no one ever advised him of his rights with regard to a refusal to do unsafe work. He further alleged he was not told of any falsification issue on July 11, 2008 and only learned about it when the employer contested his application for employment insurance.
[44] Mr. Court admitted in cross-examination that he had not done a pre-trip inspection or tested tractor 1316 in order to verify his safety concerns. In Mr. Court’s view, tractor 1316 was in the same spot he had left it on July 10 which satisfied him that nothing had been done to address his concerns of the day before.
[45] Mr. Court testified in cross-examination that he could not recall at what time on July 10, 2008 he had noticed that the air conditioning was not working. He did recall the speedometer was not working at the time he delivered his first load around midday on July 10, 2008.
[46] In cross-examination, Mr. Court explained the placement of his entries on the Inspection Report for tractor 1316. The notation about the wipers was at the top of the inspection report whereas the comments about the air conditioning and the speedometer were at the very bottom. Comments about trailer 851 fell in between. Mr. Court suggested the placement of the entries could have resulted from the fact that he completed the document from bottom to top.
[47] On July 16, 2008, Mr. Court filed a complaint under Part II of the Code with Human Resources and Social Development Canada. It was Mr. Court who initially contacted the Safety Officer.
[48] On July 28, 2008, JGH and the Teamsters had the second step meeting on Mr. Court’s July 11 grievance. At that meeting, JGH advised Mr. Court that he was being terminated. JGH apparently read to him the reasons for his termination, but did not provide him with a written termination letter. Mr. Shepley testified at the hearing that JGH has a policy of not providing termination letters.
[49] On July 31, 2008, apparently as a result of discussion with a Health and Safety Officer, JGH’s Joint Health and Safety Committee met and determined there was no unsafe situation when Mr. Court refused to work. The Joint Committee’s minutes reproduced Mr. Shepley’s statement of fact which opined that performing a required pre-trip inspection was not an unsafe procedure.
[50] A Health and Safety Officer did eventually meet with JGH. JGH signed an “Assurance of Voluntary Compliance” (AVC) pursuant to which the employer agreed, inter alia, that “Employer must ensure that the Right to Refuse Dangerous Work process is followed in the manner prescribed in paragraphs (1)-(14).”
[51] Mr. Court filed his Part II complaint with the Board on October 24, 2008, which was within 90 days of JGH terminating his employment.
III - Issues
[52] This case raises multiple issues:
- Did Mr. Court exercise his right to refuse unsafe work?
- Was Mr. Court unable to refuse to work because the activity was a “normal condition of employment”?
- Did Mr. Court elect to have this matter dealt with under his collective agreement pursuant to section 128(7) of the Code?
- Does the Board have jurisdiction over Mr. Court’s complaint that he was entitled under section 147.1(2) to written reasons explaining his dismissal?
- Was key evidence altered to support a work refusal?
- Did Mr. Court have reasonable cause to refuse to work?
- What is the impact of the addition of section 147.1(1) to the Code on the “reasonable cause” analysis?
- If a Code violation has occurred in this case, what is the appropriate remedy?
IV - Analysis and Decision
1. Did Mr. Court exercise his right to refuse unsafe work?
[53] Mr. Court argued that he clearly advised JGH that he was refusing to do unsafe work. JGH argued that Mr. Court was merely making a complaint as opposed to a safety refusal under the Code.
[54] The Board is satisfied that Mr. Court clearly expressed his intentions to JGH.
[55] JGH’s documentation and the testimony of its witnesses clearly indicated that Mr. Court exercised his right to refuse unsafe work. JGH’s real dispute arose from its fundamental disagreement whether the work was unsafe.
[56] That determination is not one an employer makes but is rather made, in the event the parties cannot agree, by a Health and Safety Officer (Safety Officer).
[57] The minutes of the July 31, 2008 special meeting of the Joint Health and Safety Committee contain a written statement by Mr. Shepley. In Mr. Shepley’s own words, Mr. Court clearly advised JGH that they could not “make him work unsafe”:
Ralph [Shepley] gave George [Court] a direct order to pretrip the tractor and go to work without delay. George refused again, and started to claim that the Company, per the contract, owed him a tractor with air conditioning, and that the air conditioning didn’t work in that tractor. Ralph said “did you write it up yesterday” as George operated that equipment the day prior. George said “yes he did” and “the speedometer doesn’t work either”, and that I couldn’t make him work unsafe”. [sic] I told him to go get the vehicle inspection book for me out of tractor 1316.
[58] Mr. Shepley was similarly consistent in his testimony. In cross-examination, Mr. Court asked Mr. Shepley if he knew that Mr. Court’s refusal to work was because he thought it was unsafe. Mr. Shepley stated “I agree that you stated unsafe work, but in my view there was no unsafe activity involved.”
[59] Mr. Shepley further confirmed his view during cross-examination that Mr. Court’s claim of unsafe work “was unfounded.”
[60] Section 128(6) of the Code obliges an employee to report his or her safety concerns to the employer:
128(6) An employee who refuses to use or operate a machine or thing, work in a place or perform an activity under subsection (1), or who is prevented from acting in accordance with that subsection by subsection (4), shall report the circumstances of the matter to the employer without delay.
[61] The Board is satisfied that Mr. Court met his obligation under section 128(6) by making a report to JGH. A worker’s obligation is simply to advise the employer he or she is invoking the right to refuse: John P. Grogan (1986), 67 di 183 (CLRB no. 594).
2. Was Mr. Court unable to refuse to work because the activity was a “normal condition of employment”?
[62] JGH argued that Mr. Court refused to do a pre-trip inspection of his vehicle. In JGH’s view, this is a normal condition of employment and is not a ground for a work refusal. Mr. Court disagreed he was ever requested to do a pre-trip inspection, but alleged Mr. Shepley ordered him to drive without the required inspection.
[63] Section 128(2)(b) limits the right to refuse if the dangerous situation is a normal condition of employment:
128(2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if
...
(b) the danger referred to in subsection (1) is a normal condition of employment.
[64] This provision does not assist JGH.
[65] Section 128(2)(b) of the Code applies to situations which involve danger, as that term is defined in the Code. In other words, even where danger is present, if that danger is a normal condition of employment, then an employee cannot refuse to work. One example of danger being a normal condition of employment would be certain duties of a firefighter at an airport.
[66] Section 128(2)(b) does not prevent an employee from exercising his or her right to refuse for any normal conditions of employment. Indeed, a normal condition of employment can become dangerous, such as if machinery being operated becomes unsafe.
3. Did Mr. Court elect to have this matter dealt with under his collective agreement pursuant to section 128(7) of the Code?
[67] Section 128(7) allows an employee to choose a safety redress mechanism that has been negotiated into a collective agreement rather than under Part II of the Code:
128(7) Where an employee makes a report under subsection (6), the employee, if there is a collective agreement in place that provides for a redress mechanism in circumstances described in this section, shall inform the employer, in the prescribed manner and time if any is prescribed, whether the employee intends to exercise recourse under the agreement or this section. The selection of recourse is irrevocable unless the employer and employee agree otherwise.
(emphasis added)
[68] The Code allows the parties to a collective agreement to negotiate a provision dealing with the right to refuse unsafe work.
[69] JGH did not convince the Board that this section of the Code has any application to Mr. Court’s situation.
[70] JGH argued that the existence of a grievance procedure in its collective agreement, coupled with its policy manual describing generally the right to refuse under the Code, were sufficient to allow the matter to be dealt with exclusively under the collective agreement.
[71] A standard arbitration procedure, such as that which Part I of the Code at section 57 makes a mandatory component of every collective agreement, does not satisfy the requirement in section 128(7) of the Code. Similarly, a boiler plate description of an employee’s right to refuse in JGH’s policy manual, besides arguably not forming part of the collective agreement, simply summarizes the procedure under the Code. It is not the type of “redress mechanism” to which section 128(7) makes reference.
[72] The evidence demonstrated that the grievance Mr. Court filed dealt primarily with his belief he was entitled to a tractor with air conditioning.
[73] The Teamsters withdrew that grievance at the second step, on the same day that JGH terminated Mr. Court.
[74] In these circumstances, there was no alternative redress mechanism available to Mr. Court for his safety refusal. Moreover, Mr. Court had no foundation on which to make an informed decision whether he wished to make an election, even if another redress mechanism had existed for his work refusal.
4. Does the Board have jurisdiction over Mr. Court’s complaint that he was entitled under section 147.1(2) to written reasons explaining his dismissal?
[75] Section 147.1(2) of the Code requires an employer to provide written reasons for any disciplinary action:
147.1(2) The employer must provide the employee with written reasons for any disciplinary action within fifteen working days after receiving a request from the employee to do so.
Mr. Court’s complaint to the Board included an allegation that JGH breached this Code section.
[76] It is clear from a contextual analysis of Part II that the reference to “disciplinary action” in section 147.1(2) refers to the types of reprisals listed in section 147:
147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee
(a) has testified or is about to testify in a proceeding taken or an inquiry held under this part;
(b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or
(c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.
[77] During Mr. Court’s termination meeting, JGH’s owner read to him the reasons for his termination. Mr. Court asked for a copy of the document the owner was reading, but was told to take notes instead.
[78] Mr. Court asked for written reasons and JGH refused that request. The issue for the Board is whether it has jurisdiction over an allegation that an employer refused to provide the written disciplinary reasons required by section 147.1(2).
[79] In Tony Aker, 2009 CIRB 474, the Board analyzed how a single incident could produce complaints in different fora. In Tony Aker, supra, an employee’s termination resulted in a reprisal complaint to the Board, a complaint of a Part II contravention to a Safety Officer and an unjust dismissal complaint under Part III of the Code.
[80] The Board’s jurisdiction under Part II is limited to reprisals: see sections 133 and 147. The Code grants a Safety Officer the general authority to investigate contraventions of all other provisions of Part II of the Code and issue remedial directives: see, inter alia, sections 127.1 and 145(1).
[81] In the Board’s view, a complaint to a Safety Officer under section 127.1 is the appropriate route for an employee like Mr. Court to use to obtain written reasons for any discipline imposed, even though the written reasons clearly relate to the prohibited reprisals listed in section 147. From a technical perspective, section 133 allows a complaint to go to the Board for a violation of section 147. However, there is no explicit reference in section 133 to a violation of section 147.1(2):
133. (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.
[82] From a remedial perspective, while the Safety Officer under section 145(1) can issue directives to remedy a contravention of Part II, the Board’s remedial power, as set out at section 134, is again limited to remedying a breach of section 147:
134. If, under subsection 133(5), the Board determines that an employer has contravened section 147, the Board may, by order, require the employer to cease contravening that section and may, if applicable, by order, require the employer to
(a) permit any employee who has been affected by the contravention to return to the duties of their employment;
(b) reinstate any former employee affected by the contravention;
(c) pay to any employee or former employee affected by the contravention compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to the employee or former employee; and
(d) rescind any disciplinary action taken in respect of, and pay compensation to any employee affected by, the contravention, not exceeding the sum that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer.
In addition, any remedies available from the Board are predicated on the Board first finding that an employer has violated section 147 by taking a reprisal against an employee.
[83] From a practical perspective, by obtaining the written reasons for discipline, whether from the employer or via a Safety Officer’s direction, the employee will be better able to decide whether he or she considers the discipline to constitute a reprisal under section 147 of the Code. It would not make practical sense for an employee to have to file a complaint in order to allow the Board to order the employer to respect the requirement to provide written reasons, assuming the Board had this power.
[84] In any event, the employer’s reasons for the discipline would already have been disclosed during the pleadings stage of the complaint. The Code contemplates the employee receiving the written reasons from the employer at an earlier time than that.
[85] These comments on the Board’s jurisdiction do not mean, however, that the failure to provide written reasons could not constitute a reprisal for the employee seeking “the enforcement of any of the provisions of this part”: see section 147(c). But the primary authority to compel an employer to provide the written reasons for the discipline rests with a Safety Officer, who can act far more expeditiously than the Board.
5. Was key evidence altered to support a work refusal?
[86] The Board has considered the testimony of the various witnesses about this issue. Mr. Court is clearly an intelligent and detail-oriented individual.
[87] However, the Board has to decide whether or not key evidence was altered in this case. The Board has determined that Mr. Court did in fact amend certain documents in order to support comments he had made to Mr. Shepley that on July 10, 2008 he had written down problems with his tractor’s air conditioning and speedometer.
[88] There are several reasons that lead the Board to this determination.
[89] The Board found Mr. Court hesitant when he was describing the events of July 11, 2008. For example, despite the parties’ pre-hearing exchange of documents which included stills from the video, Mr. Court initially suggested that the person in the video images might not be him.
[90] He later agreed that he was the person in the video, but then contested the documents he had in his hands.
[91] Mr. Ellens testified without hesitation about the events of July 11, 2008. Mr. Court had come to see him to obtain the white top copy of the Inspection Report. When Mr. Court returned that document shortly thereafter, Mr. Ellens noticed both Mr. Court’s demeanor and the fact that certain handwritten additions had been made to the Inspection Report. Mr. Ellens immediately signed and indicated the time he noticed the changes.
[92] The Board finds implausible Mr. Court’s explanation that he wanted to verify all three copies of the Inspection Report in case the copies below the top copy did not reproduce all of the information. The easiest way for him to verify whether the copies were accurate was simply to look at the copy of the Inspection Report in the book in his tractor. That copy was the third and last page of the Inspection Report. If his notations appeared on the third page then clearly they were on the first two pages.
[93] Instead, Mr. Court obtained all three copies of the Inspection Report, an act which gave him an opportunity to make an addition that would appear on all three pages, as if the addition had originally been made on July 10, 2008. He would not have been able to do this without the white copy in Mr. Ellen’s office.
[94] The Board notes as well the positioning of the disputed sentences on the Investigation Report. Mr. Court had noted that there was an issue with the tractor’s wipers. Two lines further down he mentioned there was an issue with the signalling lights for the trailer.
[95] The comments about the air-conditioning and the speedometer do not come immediately after the entry for the wipers, but rather were added at the very bottom of the page. While Mr. Court suggested he might have completed the document from the bottom up, the more likely conclusion is that he added these entries at the bottom where there was sufficient space to describe what he had already told Mr. Shepley orally on the morning of July 11, 2008.
[96] The Board finds Mr. Court altered the Inspection Report on July 11, 2008.
6. Did Mr. Court have reasonable cause to refuse to work?
[97] JGH argued at the hearing that Mr. Court had no reasonable cause to believe danger existed and, therefore, was not entitled to protection under Part II of the Code.
[98] The Board has always recognized the importance of the safety protections found in what is now Part II of the Code. In order for those protections to have real effect, employees must not be intimidated from exercising their rights.
[99] In the past, the Board’s predecessor, the Canada Labour Relations Board (CLRB), was concerned about the abuse of the Code’s Occupational Health and Safety provisions. If an employee exercised his or her right to refuse work for an ulterior motive, then this could undermine the effectiveness of the Code’s safety regime.
[100] For that reason, some CLRB decisions focussed on the words “reasonable cause to believe” in section 128(1) when suspicions arose that a complainant was using the right to refuse for inappropriate reasons:
128. (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that
(a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;
(b) a condition exists in the place that constitutes a danger to the employee; or
(c) the performance of the activity constitutes a danger to the employee or to another employee.
(emphasis added)
[101] The CLRB described this principle:
An employee’s right to refuse under section 82.1 (now section 128) must be used wisely and only in the true interests of safety. To abuse that right by coupling it to other interests such as to gain an advantage in collective bargaining will, in the long term, defeat the purpose and attainment of the goals of Part IV (now Part II) of the Code. Improved safety and reduction of health hazards in the workplace through consultation and co-operation cannot be accomplished in an air of mistrust and adversity. Any employee refusal which coincides with other labour relations conflicts will receive very close scrutiny from the Board.
(William Gallivan (1981), 45 di 180; and [1982] 1 Can LRBR 241 (CLRB no. 332); pages 189; and 248)
[102] The CLRB accepted that an employee could have reasonable cause, even if the later investigation proved that no danger as contemplated by the Code had existed. But the CLRB would also weed out unacceptable abuse:
As the Board pointed out in that case, it does not have to be satisfied that a danger existed when the refusal occurred in order for an employee to enjoy the protection of section 147(a). Employees may be mistaken in their assessment of a danger, but they must satisfy the Board that they genuinely believed that a danger existed so that the Board is in turn satisfied that they had reasonable cause to act as they did.
The reasons given by Messrs. Gélinas and Fontaine for their refusal do not constitute reasonable cause. The Board considers it unacceptable for letter carriers with extensive work experience to decide, inside a taxi, merely by looking outside, that delivering mail would pose a danger to their safety and health, and therefore constituting reasonable cause to refuse to work.
The complainants have not satisfied the Board that the reason alleged was the real and reasonable cause of the refusal. Rather, the Board is convinced that the reason for the refusal is the dissatisfaction and frustration resulting from the abolition of the committee on adverse weather conditions. The Board is prepared to concede that the employer's decision to terminate a negotiated agreement unilaterally, without informing the union and discussing alternatives with it, would give rise to discontent and frustration.
(Jocelyn Simon et al. (1993), 91 di 1 (CLRB no. 988), pages 10-11)
[103] The CIRB has continued to consider an employee’s “reasonable cause to believe” by employing a two-step approach when determining if a breach of section 147 of the Code occurred:
[71] If an employee is to benefit from the protection of the Code, his refusal must be made in circumstances where it is reasonable to believe that a danger exists (as stated in section 128(1), “has a reasonable cause to believe”). Thus, the belief must at once be genuine and based on reasonable cause. The Board has taken a broad view of what constitutes a “reasonable cause.” To the extent that the refusal is founded on genuine safety concerns, the Board will determine that the employee should receive the full protection of the Code, even though the concern may later be deemed to be unfounded (see Dennis C. Atkinson (1992), 89 di 76 (CLRB no. 958)).
[72] The underlying concept is that employees ought not to be discouraged from coming forward by placing a heavy onus on them to establish that their fears are well founded. Accordingly, the Board’s focus in reviewing a complaint of reprisal due to the exercise of the right to refuse to work under the Code will be to assess the employer’s reasons for taking disciplinary action, rather than on the reasonableness of the employee’s position (see Michael P. Chaney, [2000] CIRB no. 47).
...
[77] The Board’s determination of a complaint is a two-step process. First, the Board must determine whether the complainant acted in accordance with Part II of the Code when he exercised his refusal to work. If the Board is satisfied that the right to refuse to work was in conformity with the Code, then the second step is to consider whether the employer’s decision to discipline the complainant was motivated by considerations not related, even remotely, to the employee’s right to refuse to work. Said differently, the employer must demonstrate that, on a balance of probabilities, the discipline was administered for reasons other than the employee’s invoking his right to refuse unsafe work.
(Kenneth G. Lequesne, 2004 CIRB 276)
[104] The Federal Court of Appeal has recently confirmed in Saumier v. Canada (Attorney-General), 2009 FCA 51 that if an employee does not have reasonable cause to believe that a request to return to work will pose a risk to his or her safety and health, then the safety complaint will be dismissed.
[105] JGH argued that Mr. Court had no “reasonable cause to believe” that a danger existed. Rather, he was attempting to invoke his right for other purposes, including his belief that the collective agreement entitled him to a tractor with air conditioning.
[106] JGH put in evidence not only about Mr. Court’s alleged falsification of the key documents, but also various witness’ opinions that no danger existed on the morning of July 11, 2008. This evidence came from same-day examinations of tractor 1316 by JGH employees, opinions on the safety of conducting a pre-trip investigation and the report of the Joint Health and Safety Committee on October 30, 2008. That report came out two days after JGH had terminated Mr. Court’s employment.
[107] The threshold for finding a “reasonable cause to believe” is necessarily low. The issue is distinct from the question of whether danger actually existed. The Board has applied its reasonable cause test for exceptional situations. In the vast majority of cases, the Board has found that an employee had reasonable cause, even if the evidence later shows the employee was mistaken in his or her belief about danger existing.
[108] The fact the Board has determined that Mr. Court modified the Inspection Report does not necessarily mean that his initial safety concerns were fictitious. The Board has found it incongruous that Mr. Court would be asking for an air-conditioned tractor under the collective agreement when, as JGH argued, tractor 1316 had proper air conditioning. Without the benefit of the Safety Officer’s investigation, the Board is deprived of the helpful objective evidence which might have illuminated whether Mr. Court was trying to create a non-existent case or instead trying to improve an already existing case that fell within the protections found at Part II of the Code.
[109] In the circumstances, while the Board had concerns about Mr. Court’s motives given what he did with the Inspection Report, the Board has concluded that Mr. Court’s report to JGH about the air conditioning issue met the low threshold which exists regarding a reasonable cause to believe under section 128(1) of the Code. The Board makes no finding whether that issue could be a danger under the Code.
7. What is the impact of the addition of section 147.1(1) to the Code on the “reasonable cause” analysis?
[110] In the 2000 amendments to the Code, the Legislator added section 147.1(1) to Part II:
147.1 (1) An employer may, after all the investigations and appeals have been exhausted by the employee who has exercised rights under sections 128 and 129, take disciplinary action against the employee who the employer can demonstrate has wilfully abused those rights.
[111] Mr. Court argued that section 147.1(1) applied to his situation. In his estimation, JGH failed to carry out the Code’s required investigation. Instead, JGH suspended and later terminated him. JGH never called in a Safety Officer to investigate.
[112] JGH took the position that section 147.1(1) only applied where an employee had repeatedly abused rights under Part II of the Code. Support for this interpretation in JGH’s submissions came from the concluding phrase of section 147.1(1) “the employee who the employer can demonstrate has wilfully abused those rights” (emphasis added).
[113] The Federal Court of Appeal, in Saumier v. Canada, supra, recently summarized the applicable principles for the right to refuse provisions under Part II of the Code:
43 A close reading of these legislative provisions leads to the following conclusions:
(i) subsection 128(1) provides that an employee is entitled, inter alia, to refuse to work in a place or to perform certain activities ‘if the employee while at work has reasonable cause to believe’ that there is danger for the employee in working in his or her workplace or that the employee’s performance of his or her activities constitutes a danger to the employee;
(ii) the exception to that principle is found at subsection 128(2), which provides that an employee cannot invoke section 128 to refuse to work in a place or to perform certain activities if ‘the danger referred to in subsection (1) is a normal condition of employment’;
(iii) under section 147, an employer shall not take any disciplinary action against or threaten to take any such action against an employee who is legitimately exercising his or her rights pursuant to Part II of the Code, entitled ‘Occupational Health and Safety’, which includes section 128;
(iv) if the employer has acted in contravention of section 147, an employee may file a written complaint ‘of the alleged contravention’ with the Board;
(v) however, after all investigations and appeals provided at sections 128 and 129 have been exhausted, section 147.1 allows an employer to take disciplinary action against an employee who has “wilfully” abused those rights.
44 That is the legislative context of the complaint lodged by the applicant, who alleges that following the exercise of her rights under section 128, the RCMP issued her a return-to-work order, an order that it reiterated on more than one occasion, threatening her with disciplinary action if she continued her refusal.
[114] As confirmed by the Court, the Board’s traditional analysis involving whether an employee had “reasonable cause to believe” a danger existed remains applicable. This threshold question determines if the employee is entitled to claim the protections in Part II of the Code.
[115] Section 147.1(1) impacts the Board’s analysis of safety complaints. Before the addition of section 147.1(1), if the Board found any employer discipline resulted from an employee’s exercise of safety rights, then the Board would intervene. Its practice was comparable to that used for unfair labour practices under Part I, where, if the contested discipline was related, in whole or in part, to anti-union animus, then the Board would grant a remedy.
[116] By contrast, section 147.1(1) now explicitly allows employers to impose discipline, even if it is related to the raising of safety concerns. However, there are temporal limitations for the imposition of such discipline. The employer must also demonstrate that an employee wilfully abused the important rights granted by Part II.
[117] Employees have important procedural protections in section 147.1(1) since a full independent investigation, and any appeals if applicable, would have to take place before any discipline for wilful abuse could be imposed. This restriction ensures a full evidentiary record exists before the matter comes to the Board.
[118] In this case, Mr. Court indicated to JGH his concern about unsafe work. The Board has found that Mr. Court had reasonable cause which provided him with the protections under Part II. JGH commenced its investigation, but then suspended Mr. Court once it discovered the altered documents.
[119] In the Board’s view, if JGH wanted to rely on Mr. Court’s falsification of documents, section 147.1(1) required JGH to carry out the Code’s investigation before disciplining Mr. Court for abusing his rights. The falsifying of key documents during a safety investigation could be the type of wilful abuse contemplated by section 147.1(1).
[120] However, by disciplining Mr. Court without completing the Code’s required investigation, JGH did not respect the requirements of section 147.1(1). This right to discipline, even for safety matters, is accordingly not available to JGH.
[121] As a result of the addition of section 147.1(1) of the Code, there can now be three steps to examine in a safety case:
- Has the employee met the low threshold of having reasonable cause to believe a danger existed?
- Did the employer impose discipline, contrary to section 147 of the Code, because an employee invoked Part II safety rights? and
- Even if the employer imposed such discipline, did it wait until after a full investigation and any appeals, and did the discipline result solely from the employee’s wilful abuse of those Part II rights?
[122] Given the burden of proof under section 133(6) of the Code, JGH has not convinced the Board that it disciplined Mr. Court for reasons unrelated to safety. JGH could not rely on section 147.1(1) given the absence of a full investigation under Part II. JGH violated the Code when it disciplined Mr. Court.
8. If a Code violation has occurred in this case, what is the appropriate remedy?
[123] The Board’s remedial powers after finding a breach of section 147 of the Code are set out in section 134, supra.
[124] The Board declares that JGH violated the Code by disciplining Mr. Court for his initial raising of safety concerns. JGH was not entitled to rely on section 147.1(1) because it did not carry out a full investigation before proceeding with discipline for Mr. Court’s tampering with relevant documentation.
[125] The Code, at section 134, grants the Board a discretion to provide remedies which go beyond a declaration.
[126] Mr. Court did not ask to be reinstated. He was also a short-term employee given his hiring on February 5, 2008.
[127] Pursuant to section 134(c), the Board orders JGH to pay Mr. Court his regular remuneration from the date of his suspension on July 11, 2008 up to and including the date of October 14, 2008 when JGH signed the Assurance of Voluntary Compliance regarding the Code’s Part II Investigation procedure.
[128] Given Mr. Court’s alteration of the Inspection Report, the type of act which could undermine the health and safety regime in the Code, the Board will not provide any further relief: David Baker, 2000 CIRB 75.
[129] In the event the parties cannot agree on the amount payable to Mr. Court, an Industrial Relations Officer from the Board may assist them. The Board will deal with any remaining disputes by way of written submissions.