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HomeMy WebLinkAbout1996-0926.Metcalf&Mercer.97-07-07 ONTARIO EMPLOYlS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MOO 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACS/MILEITELECOPIE (41tJ) 32tJ-139(1 GSB # 926/96, 927/96 OPSEU # 96F157, 96F445, 96E721 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Metcalf/Mercer) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE N. Dissanayake Vice-Chair ::-:.... FOR THE G Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE D. Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 24, 1997 ~ 2 DECISION This decision deals with a group grievance filed by Mr Jeff Metcalf and an individual grievance filed by Mr Bill Mercer In substance these grievances have at their root an allegation that the employer has failed to pay wages to a number of correctional officers at the Guelph Correctional Centre for a period during which they were exercising their right to refuse unsafe work under the Occupational Health & Safety Act The parties filed the following agreed statement of facts 1 The OPS strike took place February 26, 1996 through to March 31, 1996 2 The Guelph Correctional Centre is a medium to high security correctional centre for adult males operated by the Ministry of the Solicitor General and Correctional Services It houses approximately 500 inmates who are serving sentences of less than two years 3 Prior to the strike, the Employer, pursuant to the Crown Employees Collective Bargaining Act, entered into a number of local essential and emergency ,- service agreements A copy of the essential service agreement for the Guelph Correctional Centre and OPSEU is attached (#4) A copy of the Correctional Officer position specification is attached (#5) 4 During the OPS strike in 1996, the issue of work refusals due to health and safety concerns by Correctional Officers was the subj ect of disputes adjudicated before l)the OLRB, 2) an Adjudicator under the Occupational Health and Safety Act and 3) the Ontario Court (General Division) 5 By and large the various boards and tribunals consistently issued orders that significantly limited the movement of inmates within the prison during the strike, although none of those cases dealt with a complete stoppage of work 6 Mr J Metcalfe the Certified Member representing workers of the Joint Health and Safety Committee -.; . 3 entered the jail shortly after 10 00 a m See Attached (#6) 7 There was one work refusal on February 26, 1996 by Correctional Officer Good A decision pursuant to that refusal was issued by Mr Don Hall of the Ministry of Labour, while that matter was investigated No refusing worker was assigned to other duties Mr Hall's decision in that case indicated that the workers did not have the right to refuse work No appeal was taken of that decision Mr Good's concern was satisfactorily resolved 8 On March 25, 1996, Correctional Officers reported to work for the morning shift at 7 00 a m but did not proceed to their assigned posts Shortly thereafter, they initiated a work refusal in accordance with the Occupational Health and Safety Act 9 Sometime between 8 00 a m and 9 00 a m a conference call took place involving Mr Bill Mercer and Mr E Locke, both OPSEU members exercising their right to refuse to work pursuant to the act, and Mr Don Hall of the Ministry of Labour Health and Safety Inspection Branch 10(a) Mr Don Hall is not a member of the bargaining unit and as a member of management does not regularly perform inspections in circumstances of work refusals He is a certified Health and Safety Inspector (b) Mr Hall advised that in his opinion, the Correctional Officers at Guelph Correctional Centre did not have the right to refuse work under the Occupational Health and Safety Act The call ended at about 10 00 a m (c) Another conference call occurred at approximately 10 30 a m involving Mr Hall, Mr Metcalf, Mr Mercer, Mr Locke and management representatives In that conference call, Mr Hall issued his verbal decision in which he indicated that the Correctional Officers did not have a right to refuse work as it was inherent to their work pursuant to section 43 of the Occupational Health and Safety Act Mr Hall also spoke separately with OPSEU and Management representatives during the call 11 Through the course of the second conference call Mr Hall assisted the parties in developing a possible settlement The call ended 12 Immediately following Mr Hall's decision, at approximately 11 00 a m Lt Duffield informed the --~ I 4 refusing workers of Mr Hall's decision, then delivered an order that all C 0 s ought to return to their assigned posts Lt Potter also indicated that those continuing to refuse work would not be paid Lt Potter also indicated that all those who continued to refuse work should leave the work place No one left the work place 13 A draft settlement document was subsequently that afternoon developed by the parties and faxed to senior officials from both parties who were attending a hearing held by an adjudicator pursuant to the Occupational Health and Safety Act in Toronto (See #7) 14 The proposed settlement was not executed 15 At the beginning of each shift, through March 25, 26 and 27, management personnel would indicate to the new shift that they were ordered to their posts and if they did not attend at their posts, they would not be paid 16 Subsequently, Lt Poole said in the presence of all refusing workers to Metcalf that if he did not leave the work place the police would be brought in to have him charged with trespassing 17 The work refusal continued until March 27, 1996, when Mr Justice Adams issued an order to return to work (See #8) The Correctional Officers returned to work in compliance with Mr Justice Adams' order at approximately 5 00 pm, March 27, 1996 18 During the work refusal, shift changes occurred as scheduled pursuant to the Essential Services Agreement All Correctional Officers who reported for work participated in the work refusal On some of the shifts an insufficient number of persons reported for work In these circumstances, Ms S Cybulski, Deputy Superintendent contacted the Vice- President of the Local, Bill Thompson, to obtain the name of replacement workers in accordance with the Essential Services Agreement who were then called into work by the Ministry When the replacement workers reported to work, they were escorted to the staff lounge and in the presence of Mr Metcalf advised of the work refusal and were asked whether they were going to participate in the work refusal or whether they wished to proceed to their assigned posts They were further advised at this time that if they refused work they would not be paid All such persons refused to work _. 5 19 During the work refusal on March 26 at approximately 4 25 P m an emergency situation arose involving an assault by an inmate on Lt Kruger to which a number of the workers exercising their right to refuse to work responded as did management personnel workers The workers were thanked by Lt Hawkins for their intervention The incident lasted approximately five minutes 20 At approximately 8 00 am, March 27, the Employer delivered to the workers a copy of the order issued by Mr Hall (#4) 21 None of the workers who participated in the refusal were paid for the period from 11 00 a m March 25, 1996 through to 5 00 P m March 27, 1996 No disciplinary action was taken by the Employer against the individuals involved during or after the strike It is to be noted that Mr Hall's decision that these correctional officers did not have the right to refuse work was the subject of an appeal to the Office of Adjudication However, the parties subsequently agreed to abandon that avenue of appeal and to proceed before the Grievance Settlement Board by way of an arbitration of the present grievances The parties agreed that this Board had the jurisdiction to deal with the issues raised in the grievances The evidence indicates that the parties agreed upon "Conditions for 1994/1995 OPS-OPSEU Essential Services and Collective Agreement Negotiations" referred to as the "Umbrella Agreement", setting out, inter alia, the definitions and conditions for the negotiation of Local Essential Services Agreements applicable to individual jails This Umbrella Agreement contained the following provisions relating to "Occupational Health and Safety" _. 6 Occupational Health and Safety The parties acknowledge the application of the Occupational Health and Safety Act to workplaces and to employees performing essential or emergency work as provided under CECBA and the essential and emergency services agreements The parties agree that staffing levels during the strike/lockout, agreed to under Essential Services Agreements (ESA) reflect minimums required ESA staffing levels assure essential services only and do not reflect desirable or required staffing levels for normal operations The agreed upon staffing levels under the essential services agreements of the parties, during a strike or lockout, do not in themselves constitute a violation of article 18 of the collective agreement The Local Essential Services Agreement ("LESA") for the Guelph Correctional Centre entered into on December 4, 1995 reads as follows CORRECTIONAL SERVICES BARGAINING UNIT ESSENTIAL SERVICES AGREEMENT ,~ for GUELPH CORRECTIONAL CENTRE In accordance with the requirements of Part IV of Bill 117, this MEMORANDUM OF SETTLEMENT comprises the Essential Services Agreement for the Guelph Correctional Centre, MSG & CS, in the OPSEU Correctional Services Bargaining unit This MEMORANDUM OF SETTLEMENT is not based upon a "business as usual" scenario and shall not be interpreted as what would be advocated by either party in a normal operating situation with a fully operational worksite 1 The parties agree that in the event that this Essential Services Agreement is put into operation, only those bargaining unit employees identified In this -..... I 7 agreement and/or management and excluded employees shall be permitted to provide essential services 2 Should the number of management and excluded employees that the employer is allowed to use to offset bargaining unit essential services positions change, the parties will adjust the number of bargaining unit employees required to ensure the agreed upon level of essential services 3 The numbers provided in this agreement reflect the full time equivalent positions required to deliver the essential services and remain subject to further negotiation as to the actual individuals who will provide those services 4 The parties agree that the attached appendix will be the assigned essential service posts at the Guelph Correctional Centre There will be a total of 5508 hours of work per week classed as essential The parties further agree that the Superintendent and three Deputy Superintendents (Administration, Services and GATU) will be the identified strike team All other correctional operational managers will be reassigned (as per Central Agreement and Sec 73 1 (5) L R A ) to perform identified bargaining uni t essential services It is agreed that the 5508 hours of bargaining unit work shall be reduced by an amount equal to the number of hours obtained by multiplying the number of manager offsets by 40 hours per week Managers other than operational managers that directly supervise other bargaining units may be reassigned to other bargaining units in the event of a multiple unit strike or lockout Those managers who are not reassigned to other bargaining units may be assigned to perform the identified bargaining unit essential services, subject to their qualifications ~ 8 5 All provisions of the Collective agreement shall apply to bargaining unit employees designated to provide essential services under this agreement, unless specifically altered by this agreement, or as agreed to by the parties at the central table 6 The parties agree that the essential service work is the care, custody and control of inmates The relevant provisions of the Occupational Health & Safety Act are as follows PART V RIGHT TO REFUSE OR TO STOP WORK WHERE HEALTH OR SAFETY IN DANGER 43 (1) This section does not apply to a worker described in subsection (2) , (a) When a circumstance described in clause (3)(a), (b) or (c) is inherent in the worker's work or is a normal condition of the worker's employment; or -- (b) When the worker's refusal to work would directly endanger the life, health or safety of another person (2) The worker referred to in subsection (1) is, (c) a person employed in the operation of a correctional institution or facility, a training school or centre, a place of secure custody designated under section 24 1 of the Young Offenders Act (Canada) or a place of temporary detention designated under subsection 791) of that Act or a similar institution, facility, school or home; ~ 9 (3 ) A worker may refuse to work or do particular work where he or she has reason to believe that, (a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker; (b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; or (c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker (4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of the refusal to the worker's employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there .- is such, in the presence of one of, (a) a committee member who represents workers, if any; (b) a health and safety representative, if any; or (c) a worker who because of knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them, who shall be made available and who shall attend without delay 10 " (5 ) Until the investigation is completed, the worker shall remain in a safe place near his or her work station (6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that, (a) the equipment, machine, device or thing that was the cause of the refusal to work or to particular work continues to be likely to endanger himself, herself or another worker; (b) the physical condi tion of the workplace or the part thereof in which he or she works continues to be likely to endanger himself or herself; or (c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention continues to be likely to endanger himself, herself or another worker, the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an ;--.;c inspector to be notified thereof (7 ) An inspector shall investigate the refusal to work in the presence of the employer or a person representing the employer, the worker, and if there is such, the person mentioned in clause (4 ) (a) , (b) or (c) (8) The inspector shall, following the investigation referred to in subsection (7) , decide whether the machine, device, thing or the workplace or part thereof is likely to endanger the worker or another person ( 9) The inspector shall give his or her decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4 ) (a) , (b) or (c) . 11 (10) Pending the investigation and decision of the inspector, the worker shall remain at a safe place near his or her work station during the worker's normal working hours unless the employer, subject to the provisions of a collective agreement, if any, (a) assigns the worker reasonable alternative work during such hours; or (b) subject to section 50, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker (11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the workplace or in the part of the workplace being investigated unless, in the presence of a person described in subsection (12), the worker has been advised of the other worker's refusal and of his or her reasons for the refusal (12) The person referred to in subsection (11) must be, (a) a committee member who represents workers and, if possible, who is a certified member; (b) a health and safety representative; or (c) a worker who because of his or her knowledge, experience and training is selected by the trade union that represents the worker or, if there is no trade union, by the workers to represent them (13) A person shall be deemed to be at work and the person' employer shall pay him or her at the regular or premium rate, as may be proper, (a) for the time spent by the person carrying out the duties under subsections ( 4) and - , 12 (7)of a person mentioned in clause (4 ) (a) , (b) or (c) ; and (b) for time spent by the person carrying out the duties under subsection ( 11) of a person described in subsection (12) The employees here are seeking wages for a period during which they did not perform their assigned duties The union therefore recognizes that the claim can only succeed if the employees were exercising the right to refuse unsafe work pursuant to the OHSA If that was the case, the Act entitles the workers to be paid wages in accordance with S 43(13) The employer's primary position is that the entitlement to wages in S 43(13) is not applicable to these employees because in the particular circumstances, they did not have a right to refuse work Alternatively, the employer submits that even if the employees initially had the right to refuse, and hence the right to be paid wages, it ended (a) at 11 a m on March 25th, 1996 when the inspector announced his decision orally or (b) ~..... at least when his written decision was communicated to the employees at 8 00 a m on March 27, 1996 The employer does not deny that the employees had genuine safety concerns, whether or not those concerns were well founded Its position, however, is that those concerns had to be pursued through avenues provided in the Act other than a work refusal, because in these particular circumstances, a work refusal was not an available option under the Act for these particular employees This position is based on the employer's contention that any risk that existed was, "inherent in" and/or "a normal condition of" these employees' work withln the meaning of S 43 (1) 13 The initial issue then is whether the circumstances that gave rise ) to the refusal were (a) "inherent in the worker's work" or (b) was "a normal condition of the worker's employment" wi thin the meaning of S 43(1) (a) of the OHSA If the answer to either (a) or (b) above is in the affirmative, S 43, including the right of refusal, does not apply to these employees who are admittedly "employed in the operation of a correctional institution or facility" within the meaning of S 43(2) (c) In Re Maplehurst Detention Centre, (Decision No OHS 94-21 dated June 27, 1994) a correctional officer had purported to exercise the right to refuse unsafe work under S 43, claiming that he believed that it ~as unsafe for him to be locked in the yard with a large group of potentially violent inmates The issue arose whether the face to face contact with inmates which occurred in the yard was inherent in or a normal condition of the officer's work At p 5-6, Adjudicator Blair wrote as follows about the "inherent test" The Union, for its part, resists an interpretation of the work "inherent" which would permit a finding that any circumstance which involves a failure to take appropriate and reasonable precautions is inherent This argument is attractive To take an easy example, if Mr Chroust refused to perform yard duty because an important piece of safety equipment was malfunctioning (for example, if the emergency alarm buttons were not working) it is hard to see how that is inherent in his work By contrast, (and this is my example, not the Union's) it is not hard to see how the circumstance of a building being on fire is inherent in the work of a firefighter Applying the analysis of the Union to the firefighting analogy, can it be said that a firefighter could not refuse if an important piece of safety equipment was malfunctioning? 14 Malfunctioning equipment may not be inherent in the work of a firefighter, although fire is Of course, in this example one would also have to consider whether the refusal would directly endanger another person (paragraph 43(1) (b) There are difficult issues here, and I do not wish to suggest that by using firefighters as an example I .. am purporting to decide any of those issues For reasons which will become apparent, I do not need to do so in this case While finding it unnecessary to decide the appeal based on the "inherent test", Mr Blair at p 6 commented that he found "the union's arguments about inherence to be more persuasive than those of the respondents" In my view, the circumstances before me are comparable to the example cited by Mr Blair as an "easy example" of a situation not inherent in a correctional officer's work, i e a requirement to perform yard duty when an important piece of safety equipment was malfunctioning Mr Blair raises but does not make any conclusion with regard to the example relating to the firefighter In my view the answer in the firefighter example must -- be the same For example, if the employer does not provide a critical piece of equipment such as a protective mask (or provides a malfunctioning one) can it be said that the risk posed in those circumstances is "inherent" in a firefighter's work? I think not The inherent risk is that which is normally undertaken by a firefighter That "normalcy" must include the basic safety equipment of a firefighter Whether or not the firefighter in this example may be deprived of the right of refusal on some other basis, in the Board's view, he cannot be denied that right on the basis of the "inherent test" in S 43 (1) The risk that is inherent in a firefighter's work is that which exists despite the protective equipment that is normally used in firefighting 15 Similarly, the risk that is inherent in the work of these correctional officers at Guelph Correctional Centre is that which necessarily exists under established norms That is the risk a person understands to exist and undertakes when accepting employment as a correctional officer For example, a certain degree of risk may be inherent where as per practice a certain number of officers supervise a certain number of inmates with the aid of certain safety devices However, if for whatever reason, the number of officers supervising decreases substantially and/or the usual safety devices are not made available, the degree of risk can significantly increase, so that it can no longer be reasonably said that such risk was inherent in the work of a correctional officer The material before me indicates that these officer's safety concerns included concerns relating to inmate movement from living units to other areas of the institution, day room access/unlocking procedures on cell blocks, lack of lock down and search procedures, lack of supervision of inmate cleaners, inmates not screened for contagious deceases being allowed in the kitchen, cancellation of health and safety meetings and inspections, and managers performing correctional officer duties during the strike lacking sufficient experience and training Whether well-founded or not, there is no dispute that the employees genuinely believed that these circumstances posed a health and safety risk at the time The union took the position (the employer did not take issue with that) that all of these concern related to the reduced staffing levels in place as a result of the OPS strlke Two maJor concern were (a) the lack of the usual safeguards to prevent and detect misconduct by inmates such as the manufacturing of weapons and the brewing of alcohol and (b) the large 16 .- numbers of inmates allowed out of their cells at the same time despite the significantly reduced number of officers on duty and the absence of the usual levels of "back up" assistance in the event of an inmate uprising or violence It is clear that these concerns did not exist prior to the reduction of the staffing levels In other words, such additional risk was not inherent in or a normal part of the job of a correctional officer at Guelph Correctional Centre A person undertaking such a position could not have reasonably anticipated the increased degree of risk that existed during the strike Next the Board turns to the "normal condition of employment test" In Maplehurst Detention Centre (supra, at p 6) the adjudicator described that test as follows In my view, the Legislature has made it clear that a person in the position of Mr Chroust may not use the work refusal procedure to call into ,- question the existing and established practices of the institution This conclusion sounds more onerous for workers than it in fact is Had Mr Chroust been refusing to work because of (for example) a malfunctioning alarm button or radio, that would not have been a normal condition of his employment any more than it would have been inherent Clearly, it is neither, and the right to refuse would have existed unless paragraph 43(1) (b) applied Also it means that Mr Chroust and other correctional officers cannot refuse to perform work that is a part of their established routine, unless some circumstance exists which departs from that established norm It does not mean that an existing practice cannot be called into question as being unsafe Indeed, as will be seen, I have found that the circumstances which prevailed in the yard at the time of the work refusal were unsafe and in violation of the Act (Emphasis added) - 17 Again at p 7, the adjudicator observed "The only way that I can make any sense at all of the language is to read "normal condition of employment" as referring to the established and prevailing working conditions Applying that test to the correctional officer in that case, it was held that the requirement of conducting yard duty in the circumstances of that case was a normal condition of the officer's employment and that as a result he did not have a right to refuse that work In Maplehurst Detention Centre, the yard duty was held to be a normal condition of employment for the officer because, it was in accordance with the established and prevailing practices of the institution Could the same be said about the situation here? I think not On the contrary, the conditions under which these officers were required to work were very unusual This is quite understandable, because the employer found itself significantly short-staffed due to the strike Nevertheless, there can be little doubt that the conditions that existed -- were not in accordance with the established and prevailing practices of the institution To use the language of adjudicator Blair, circumstances did exist which departed from the norm Indeed, in the preamble to the local Essential Services Agreement for Guelph Correctional Centre the parties explicitly recognize that the agreement is "not based upon "a business as usual" scenario and shall not be interpreted as what would be advocated by elther party in a normal operating situation with a fully operational worksite" Employer counsel argued that the conditions under which the employees in question worked should be deemed to be in accordance with ..--- 18 established practice because the union and the employer had agreed to the particular staffing levels for the duration of the strike Thus it was argued that through the umbrella agreement and the local agreement, the parties had established these practices Reliance was placed on that portion of the umbrella agreement whereby it was provided that "The agreed upon staffing levels under essential services agreements of the parties, during a strike or lockout, do not in themselves constitute a violation of article 18 of the collective agreementH That stipulation was clearly intended to save the employer from liability under the collective agreement for failure to make reasonable precautions for the safety and health of its employees It does not purport to oust any statutory right employees may have under the OHSA Indeed, the same preamble of the umbrella agreement explicitly reserves those statutory rights when it provided that "The parties acknowledge the application of the Occupational Heal th and Safety Act to employees performing essential or emergency work as provided under CECBA and the essential and emergency service agreementsH Moreover, it is apparent that even the employer's immunity from liability under the collective agreement contemplated is not absolute The agreement is that the reduced staffing levels in themselves will not result in liability That may not necessarily save the employer from liability if the reduced staff is used in such a manner as to endanger the safety of the employees That in the Board's view, is at the very root of this dispute While in the local essential services agreement the parties agreed to 19 specific staffing levels, they did not address the question of whether normal operations will be carried out, and if so, how that will be done with the significantly reduced staffing As Adjudicator Dana Randall observed at p 4 of his decision in an appeal from several inspector's decisions with respect to several correctional institutions (including Guelph Correctional Centre) , Re Ministry of Solicitor General and Correctional Services, Decision No OHS 96-15 dated March 6, 1996 The ESA's clearly set out the staffing levels agreed to by the parties; there can be no ambiguity respecting that For whatever reason, however, the parties did not turn their minds to the issue of what daily routines would be followed in the institutions with reduced staffing The agreements are completely silent, for instance, with respect to the issue before me The ESAs, however, do make clear that 1) It will not be business as usual' and 2) that the ESA's will be subject to the OHSA The health and safety concerns of the officers were not the product of the reduced staffing levels themselves It was the result of their belief that the employer had failed to adequately adjust the operations in ::-.;.... order to compensate for the reduced staffing levels The Board does not intend to be critical of the employer in this regard I recognize that the employer may have legal and moral obligations towards inmates which may not permit it very much latitude in cutting services and altering routines Wherever the merits may lie in that regard, the fact is that the officers believed that the unusual working conditions that they faced at the time exposed them to a level of risk which exceeded the level of risk normally associated with the work of a correctional officer Employer counsel argued further that this work refusal was not a valid exercise of the right under S 43 anyway because it was a complete 20 refusal to perform their job as opposed to a refusal to perform a particular task counsel submitted that S 43(3) envisages as a condition of refusal, a belief that a particular task is rendered unsafe due to the existence of one of the conditions listed in subsections (a) , (b) or (c) The Board cannot agree that S 43(3) does not permit an employee to refuse to perform all functions of his position under any circumstances Indeed S 43(3) explicitly recognizes that a work refusal may be a complete refusal or a refusal to do a particular task or function, when it provides that "A worker may refuse to work or do particular work" In the Board's view the scope of the permissible work refusal must necessarily depend on the nature of the safety concern of the employee If the concern, for example, is about the safety of a particular partitioning wall in the workplace, the employee may be entitled to refuse to work in that vicinity However, he may not be entitled to refuse to work in other parts of the building where the unsafe wall does not pose any danger On the other hand, if the employee's concern is about the structural stability of the roof of the building, the employee may be justified in refusing to work anywhere in the building, which may result in his refusing to do any work at all The material before me indicates that the safety concerns resulting from the reduced staffing did not pertain to anyone or only a few distinct job functions While there may have been some job functions which would not have been directly affected by the reduced staffing levels, the Board is satisfied that the concerns related to a substantial part of the officer's day to day jOb functions, including most functions requiring direct contact with inmates In the circumstances the officers were 21 entitled to refuse work generally as permitted by S 43 rather than pick and choose particular tasks to refuse For the foregoing reasons therefore, the Board concludes that the correctional officers in question had the right to engage in the work refusal which they initiated at the start of the shift at 7 00 a m on March 25, 1996 Despite the employer's position at arbitration, the management at Guelph correctional Centre appears to have accepted this because the employees were paid their wages from 7 00 a m until 11 00 a m that day However, no wages were paid beyond 11 00 a m because it was management's position that once the inspector made his oral decision at 11 00 a m to the effect that the officers did not have the right to refuse, they no longer had a right to continue the refusal This position forms the basis of the employer's alternate argument at arbitration, to the effect that at 11 00 a m on March 25th (when the inspector made his oral decision) or at least at 8 00 a m on March 27th -- (when the inspector communicated his written decision), the employees lost their right to refuse, and hence the right to wages It is the employer's position that the right to wages under S 43(12) extends only up to the time the inspector makes his decision which could be done orally [S 43 (8) ] and confirmed in writing subsequently "as soon as practicable" [S 43 (9) ) Counsel submitted that even if the inspector's decision was wrong or flawed, its effect was to end the right of refusal After that point, the employees should have returned to work, and if they so wished, appealed the inspector's decision or taken some step other than a work refusal v- ~ 22 The union did not disagree with the employer's position in principle That is, the finding of this Board that an inspector's decision was wrong per se would not change the legal result that the employees' right to continue the work refusal and claim wages terminated when the inspector's decision was rendered However, the union submitted in effect that in this particular case Mr Hall's decision was not merely wrong in its conclusion, but was procedurally so fundamentally flawed that it was void ab initio In other words, there was in effect no decision rendered within the meaning of the Act The union's submissions are based on the requirement in S 43.( 8) that the decision of the inspector must be made "following the investigation referred to in subsection (7)" Subsection (7 ) provides that "An inspector shall investigate the refusal to work in the presence of the employer or a person representing the employer, the worker, and if there is such, the person mentioned in clause (4 ) (a) , (b) or (c)" (Emphasis added) It is the union's position that a decision made following a :;0.;... conference telephone call, without the inspector ever meeting the persons in question face to face or visiting the work-site, does not meet the mandatory requirements of the Act The union further submits that there was another critical "missing step" in the process of investigation contemplated by the Act Counsel points out that when a worker initially reports the circumstances of the work refusal to the worker's employer or supervisor, S 43(4) requires that the employer or supervisor "Shall forthwith investigate the report in the presence of the worker" (emphasis added) and certain other persons listed It is the union's contention that the employer here completely skipped this r- 23 first stage of the investigation required to be carried out by the employer and directly proceeded to the second stage Ministry investigation upon receipt of notice of the refusal The nature of the Ministry inspector's investigation required by the Act has been reviewed by Adjudicators sitting in appeal of inspector's decisions In Re General Motors of Canada, Decision no OHS 96-13 dated March 5, 1996, Adjudicator Palumbo at p 9 observed as follows about inspector's investigations carried out without attending at the worksite I would, however, be remiss, if I failed to make the following observations I emphasize that these are observations only On a plain reading of subsection 43 (7) , it J.s unlikely that an investigation ought to take place without an inspector's presence at the workplace where the work refusal occurred How else can one interpret the words "an inspector shall investigate the refusal to work in the presence of the employer or a person representing the employer, the worker, and if there is such, the person mentioned in clause (4) (a), (b) or (c) " (emphasis added in original) except in a manner which presumes an on-site investigation? Furthermore, the requirement to -_. attend at the workplace makes sense in the context of the requirement that the worker is to remain in a safe place near or at his workplace pending the investigation Again the inference is that the inspector will be at the workplace to conduct his or her investigation I hasten to add that the workers' unease of September 26 and the work refusal of September 27 would in all likelihood have been avoided had the inspector attended personally at the workplace In Re Falcorobridge Ltd - Fraser Mine, Decision No OHS 96-28 dated October 29 1996, Adjudicator Randall considered whether an inspector's investigation carried out through a conference telephone call met the 24 ~ requirements of the Act citing with approval the dicta in Re General Motors, supra, Adjudicator Randall at p 12 wrote as follows I am of the view that section 43 contemplates that the inspector will attend at the workplace to carry out the second stage of a work refusal investigation A plain reading of the statutory scheme suggests that that is the only reasonable interpretation Historically, that has been the Ministry's practice under the extant statutory scheme I need not say more on this issue; I adopt Adjudicator Palumbo's remarks and Mr Arnott did not challenge the veracity of that interpretation before me At p 11-12 he described the requirement that the Ministry inspector carry out an investigation "in the presence of the workplace partiesH as one of the "statutory scheme's central featuresH This Board agrees with the interpretation of S 43 (7) by Adjudicators Palumbo and Randall There can be no doubt that the kind of ministry investigation contemplated by the Act as interpreted by the ,- Adjudicators did not occur in this case Indeed employer counsel did not take the position that Mr Hall's investigation met the requirements of the Act His contention was to the effect that, flawed or not, Mr Hall issued a decision and it had the effect of terminating the employees' right of refusal similarly, the material before me indicates that the first stage employer investigation contemplated by the Act did not take place in this case Instead the employer proceeded directly to the second stage investigation by the Ministry inspector This fact is evidenced in the 25 affidavit by the then superintendent of the Guelph Correctional Centre, Mr Douglas Dalgleish, filed in support of the application for an injunction before Adams J Paragraphs 8-9 of the affidavit read 8 On Monday, March 25, 1996, during the 0700-1900 shift, 31 bargaining unit staff were designated as essential service workers They reported for work but proceeded to the staff lounge They claimed to be concerned about issues of health and safety, and indicated they were going to commence a work refusal They requested the presence of the union certified representative on the institutional health and safety committee, Mr Jeff Metcalfe 9 Management at the institution contacted Mr Metcalfe and also contacted a Ministry of Labour inspector, Mr Don Hall He advised the parties, over the telephone, that the circumstances outlined by the union did not constitute a proper work refusal under the Occupational Health and Safety Act Mr Hall has subsequently issued a written copy of his order and it is contained as Exhibit "B" to this my affidavit The Board wishes to observe that the procedural requirements set out in S 43 not complied with in this case are not mere technical requirements s 43 as a whole sets out a detailed and well thought out ,~ procedure that is required to be triggered when a work refusal occurs The requirements that were not observed in this case, namely, the carrying out of an employer investigation and the conduct of an on-site investigation by the inspector, are couched in mandatory language, as evidenced by the use of the word "shall" It is the compliance with these requirements that preserves the integrity of the whole scheme under S 43 and gives a degree of assurance to the workers who initiated the work refusal, that their concerns have been thoroughly and appropriately investigated, so that they would be able to return to productive work with confidence Here the procedural defects were not insignificant Every time an inspector's 26 ~ decision is found to be wrong in its conclusion or where there are minor procedural defects, the workers may not be entitled to continue the work refusal However, where, as here, the employer fails to carry out any investigation at all and the inspector makes a decision over the telephone without so much as visiting the worksite, it is not reasonable to expect that the worker's will have any confidence in the decisions received or that their concerns about the safety of the work will be allayed In this case no employer investigation occurred at all The Ministry investigation was so fundamentally flawed that it amounted to no investigation at all The Board agrees with the union that a decision that results from such a fundamentally flawed process is not a decision which triggers any legal consequences For the foregoing reasons, the Board concludes that the inspector's oral decision or his subsequent written decision did not have the effect of ending the employees' right of refusal and hence the right to wages Therefore, they were entitled to be paid up to the time they ended their -~ work refusal pursuant to the court order The employer is hereby directed to compensate the employees covered by the two grievances for the wages lost The Board remains seized in order to deal with any disputes relating to the implementation of this decision Dated this 7th day of July, 1997 at Hamilton, ontario ~e7-::-- Nimal V Dissanayake Vice-Chairperson