Contenu de la décision
PART II
OCCUPATIONAL HEALTH AND SAFETY
Erb Transport Limited
applicant
and
David Vey
respondent
___________________
Decision No.: 06-010
This case was heard by Appeals Officer Pierre Guénette in
Appearances
For the applicant
Ian S. Campbell, Counsel
Floyd Gerber, Vice President, Human Resources, Erb Transport Limited
Tom Broda, Health and Safety Manager, Erb Transport Limited
Wilson Milley, Barrie Terminal Manager, Erb Transport Limited
Jack Sutton, employee member of the health and safety work place committee, Erb Transport Limited
For the respondent
David Vey did not attend the hearing nor was he represented.
Health and Safety Officer
Ken Manella, Human Resources and Skills Development
[1] On
[2] On
[3] For immediate reference, the direction reads as follows:
IN THE MATTER OF THE
PART II – OCCUPATIONAL HEALTH AND SAFETY
DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1)
On April 14, 2005, the undersigned health and safety officer conducted an investigation in the work place operated by ERB TRANSPORT LIMITED, being an employer subject to the Canada Labour Code, Part II, at 1889 Britannia Road East, Mississauga, Ontario L4W 3C3 with regards to the 75 Ellis Drive, Barrie Terminal, Barrie, Ontario, L4M 4H7, the said work place being sometimes known as ERB TRANSPORT LIMITED.
The said health and safety officer is of the opinion that the following provisions of the Canada Labour Code, Part II, have been contravened:
Sub-section 128.(10) of the
An employer shall immediately on being informed of the continued refusal under subsection (9), investigate the matter in the presence of the employee who reported it and of
(a) at least one member of the work place committee who does not exercise management functions;
(b) the health and safety representative; or
(c) if no person is available under paragraph (a) or (b), at least one person from the work place who is selected by the employee.
Sub-section 128.(13) of the
If an employer disputes a matter reported under subsection (9) or takes steps to protect employees from the danger, and the employee has reasonable cause to believe that the danger continues to exist, the employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity. On being informed of the continued refusal, the employer shall notify a health and safety officer.
This officer is of the opinion that on
Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contraventions no later than
Further, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(b) of the Canada Labour Code, Part II, to take steps to ensure that the contravention does not continue or reoccur.
[4] In this regard, counsel Campbell held that HSO Manella erred because he did not rely on solid evidence for his opinion that a refusal to work did take place on March 29, 2005 pursuant to the Code.He added that, whether the situation that arose on March 29, 2005 was characterized as a refusal to work, a continued refusal to work did not take place because the situation was resolved at the time.For this reason, there was no obligation to contact a health and safety officer and such conclusions were wrong.Therefore, counsel Campbell held that there was no basis for the issuance of the direction.
[5] The following evidence is not in dispute:
on
following this event, D. Vey was assigned modified duties;
on
on
on the morning of
due to his medication, D. Vey refused
at this point,
T. Broda was advised that D. Vey did not feel he could drive due to his medication;
neither the word “danger” nor the Code was ever mentioned to W. Milley or T. Broda by D. Vey at the time, but he did say that he did not feel safe to drive a truck due to his medication;
at the end of the meeting, D. Vey left
on
D. Vey complained to HSO Manella that, the day before, he had received a letter from Floyd Gerber, Vice President of Erb Transport Limited, advising him that he had been fired;
D. Vey alleged to HSO Manella that his termination was a disciplinary action following his refusal to drive a truck on
[6] D. Vey wrote the following statement on the complaint registration form that he completed under the Code:
I was dismissed because I refused to drive a truck while on medication that prohibits driving while taking them, and, that the time I was on a “WSIB”
[2]
claim for “light duties”.
[7] HSO Manella submitted a copy of his investigation report prior to the hearing and testified at the hearing.I retain the following from his report and testimony.
[8] HSO Manella stated that, at the end of the call with D. Vey on March 30, 2005, he suggested that he file three complaints: the first one under the Canada Labour Code, Part II (the Code), for the refusal to work, the second one under the Canada Labour Code, Part III, for unjust dismissal, and the third one with the Canada Industrial Relations Board (the Board).
[9] HSO Manella also stated that, at the time, during the last six months, his office had received two other complaints from employees of Erb Transport Limited alleging that they had been disciplined following the exercise of their right to refuse to work.
[10] Based on this, HSO Manella decided to conduct an investigation on D. Vey’s complaint to determine whether or not Erb Transport Limited had complied with the refusal to work provisions under the Code.He first met with F. Gerber, Vice President, Human Resources,and
[11] HSO Manella affirmed that, when he met with D. Vey on
[12] HSO Manella declared that D. Vey also held that the reason he left W. Milley’s office on that day was because neither
[13] HSO Manella stated that D. Vey told him that later on
[14] Based on the information gathered during the course of his investigation, HSO Manella concluded that a refusal to work had taken place on March 29, 2005.
[15] HSO Manella also concluded that the refusal to work was ongoing because, whether
[16] W. Milley, T. Broda, F. Gerber and Jack Sutton testified for the applicant at the hearing.I retain the following from their testimonies and the written documents provided by them at the hearing.
[17] W. Milley held that after D. Vey’s first injury on
[18] W. Milley stated that, after returning to work on
[19] W. Milley also stated that, on the week of March 28th, D. Vey was at work but again did nothing.
[20] W. Milley held that, on
[21] W. Milley held that, when he discussed this with D. Vey on that day, he told him that he could do some lights duties, for instance a trailer check to see which ones were clean and which ones were dirty and to wash the dirty ones.That is when D. Vey got upset and asked what work he would do if he could return to regular duties as W. Milley had put another driver on the peddle run that he had bid for.W. Milley told D. Vey that he wanted him to return to driving as there was nothing on his Functional Abilities Form for Timely Return to Work (FAF) [3] saying he could not do so.D. Vey replied that he could not drive because he was on medication.
[22] Following this discussion, W. Milley organized a teleconference call between himself, D. Vey and T. Broda.When T. Broda said there was nothing on D. Vey’s FAF forbidding him to drive, D. Vey presented his doctor’s prescription, which said that he had to be careful when operating a motor vehicle.D. Vey argued with T. Broda that it meant that he could not drive a truck for this reason.
[23] W. Milley stated that when he got off the phone, he asked D. Vey to tell him what work he could do and told him that the only time he was expected to be seen reading the newspaper was during his break.D. Vey replied to
[24] W. Milley finally stated that D. Vey left the terminal by driving his own vehicle.
[25] T. Broda confirmed that he received a call from W. Milley on
[26] T. Broda held that he asked D. Vey why he could not drive, as there was nothing on his FAF to indicate that, to which D. Vey replied that it was on his doctor’s prescription.W. Milley then read the prescription, which said that D.Vey’s medication could cause drowsiness.
[27] T. Broda declared that he advised D. Vey that there was nothing to indicate that he could not drive and that they wanted him to try.He also reminded D.Vey that someone would accompany him to do the lifting, as it was specified on his FAF that he could not do any.T. Broda also told him that the other employee could take over his driving duties if for some reason his medication made him feel drowsy.
[28] T. Broda finally stated that he ended his participation in the conference call by advising D. Vey that it was up to him to decide and he left D. Vey and W. Milley to their discussion.
[29] Both W. Milley and T. Broda held that when they spoke with D. Vey on
[30] F. Gerber stated that Erb Transport Limited provides to all employees a health and safety policy manual that explains the procedure to exercise the right to refuse to work under the Code.
[31] F. Gerber declared that he wrote the termination letter to D. Vey on March 29, 2005 because there was evidence that the employee had done nothing to cooperate and perform light duties.This situation had been going on for a long time, in fact, since the employee’s first injury.
[32] F. Gerber also held that on that day, he did not understand that D. Vey was making a refusal to work because he thought that the issue of dealing with D. Vey’s concerns had been resolved and that the employee could continue to perform his light duties.
[33] F. Gerber finally stated that there had been past instances where drivers on medication had been assigned to light duties.
[34] J. Sutton stated that he was never approached about D. Vey’s concerns and that that issue was never raised during a health and safety committee meeting.
[35] In his final argument, counsel Campbell referred to jurisprudence to support his submission that no refusal to work had taken place on March 29, 2005, because D. Vey’s concerns were not related to a condition of work.
[36] The respondent, D. Vey, did not attend the hearing and was not represented, even though he was given ample prior notice of the date and place of the hearing.
**************
[37] In my view, the first matter to be decided in the present case is whether or not HSO Manella erred when he determined that he had authority under the Code to investigate D. Vey’s complaint.
[38] For his part, counsel Campbell argued that the two points in issue were:
whether HSO Manella erred when he decided that a refusal to work took place on
whether HSO Manella erred when he also decided that a continued refusal to work took place on
and he presented some jurisprudence to support this point of view.
[39] If I decide that HSO Manella had the authority to investigate D. Vey’s complaint, the second issue to be decided will be whether or not HSO Manella erred when he determined that a refusal to work did take place on
[40] If I decide that a refusal to work did take place, a third issue will have to be determined, that is whether or not HSO Manella erred when he became of the opinion that Erb Transport Limited was not in compliance with the Code because he did not follow the refusal to work procedure.
[41] In order to resolve this matter, I must consider the facts of the case and the relevant legislation.
[42] In light of the evidence, D. Vey sustained a work related injury to his back on July 9, 2004 and was put under light duties. On
[43] The evidence also shows that D. Vey’s complaint under the Code was directly related to his dismissal alleging that it had been made following his refusal to work.
[44] Section 133 of the Code clearly stipulates that where an employee alleges that an employer has taken or threatens to take any disciplinary action against the employee because he or she exercised rights under the Code, the employee may make a complaint in writing to the Canada Industrial Relations Board.Pursuant to section 134 of the Code, the Board has exclusive jurisdiction to deal with contraventions of section 147 of the Code regarding disciplinary actions.In addition, no provisions of the Code give a health and safety officer a remedial power to deal with a complaint of an employee alleging that he or she has been disciplined by the employer following the exercise of his or her right of refusal to work under the Code.
[45] Sections 133, 134 and 147 read as follows:
Complaints When Action against Employees
133(1) An employee, or a person designated by an 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.
(2) The complaint shall be made to the Board not later than ninety days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.
(3) A complaint in respect of the exercise of a right under section 128 or 129 section may not be made under this section unless the employee has complied with subsection 128(6) or a health and safety officer has been notified under subsection 128(13), as the case may be, in relation to the matter that is the subject-matter of the complaint.
(4) Notwithstanding any law or agreement to the contrary, a complaint made under this section may not be referred by an employee to arbitration or adjudication.
(5) On receipt of a complaint made under this section, the Board may assist the parties to the complaint to settle the complaint and shall, if it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, hear and determine the complaint.
(6) A complaint made under this section in respect of the exercise of a right under section 128 or 129 is itself evidence that the contravention actually occurred and, if a party to the complaint proceedings alleges that the contravention did not occur, the burden of proof is on that party.
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 that 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.
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 of time 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.
[46] Therefore, I conclude that HSO Manella had no authority under the Canada Labour Code, Part II, to investigate D. Vey’s complaint.
[47] I also conclude that, pursuant to Canada Labour Code, Part II, HSO Manella had no grounds to investigate a refusal to work on
[48] Therefore, I am of the opinion that HSO Manella erred when he issued a direction to Erb Transport Limited pursuant to the Canada Labour Code, Part II, following his investigation into D.Vey’s complaint.
[49] For this reason, I am rescinding the direction that HSO Manella issued to the employer.
[50] Given this decision, I therefore do not have to and will not decide on the second and third issues stated in paragraphs 39 and 40 of the present decision.
______________________
Pierre Guénette
Appeals Officer
SUMMARY OF APPEALS OFFICER’S DECISION
Decision No.: 06-010
Applicant: Erb Transport Ltd.
Provisions:
Keywords: Refusal to work procedure, investigation, Board, disciplinary actions
Summary:
Following an investigation, a health and safety officer issued a direction on …, 2005, under the Canada Labour Code, Part II, to Erb Transport Limited
[1]
Although HSO Manella indicated March 28, 2005 as the date of the alleged refusal to work, it is obvious from the submitted evidence that this is a typo and that the date should read March 29, 2005.
[2]
Workplace Safety & Insurance Board of
[3]
The purpose of the FAF is to provide the employer with a list of the physical (functional) abilities of the injured employee to assist in his return to work.