2012 OHSTC 24

Citation: Canadian Union of Public Employees (CUPE) and Air Canada, 2012 OHSTC 24

Date: 2012-07-18 
Case No.: 2011-36
Rendered at: Ottawa

Between:


Canadian Union of Public Employees (CUPE) Air Canada Component, Appellant

and

Air Canada, Respondent


Matter: Appeal pursuant to subsection 146(1) of the Canada Labour Code against a direction issued by a health and safety officer

Decision: The direction is varied

Decision rendered by: Mr. Jean-Pierre Aubre, Appeals Officer

Language of decision: English

For the appellant: Mr. James Robbins, Counsel, Cavalluzzo Hayes Shilton McIntyre & Cornish LLP

For the respondent: Ms. Rachelle Henderson, Counsel, Labour & Employment Law, Air Canada


 
REASONS

[1] This is an appeal pursuant to subsection 146(1) of the Canada Labour Code, Part II (the Code) filed by the Air Canada Component of the Canadian Union of Public Employees (CUPE) against a direction issued to Air Canada under subsection 145(1) of the Code, on June 8, 2011, by Health and Safety Officer (HSO) Luc Mayne. This direction was issued by the HSO following the latter’s investigation into seven complaints filed by employees of the respondent alleging that Air Canada had failed to comply with its obligation, as the employer, to respond in the manner stated at paragraph 125(1)(z.10) of the Code, to recommendations made by the policy and/or the work place committee, thereby contravening its statutory obligation to do so.

[2] While the direction that is the subject of this appeal was issued to the employer, there has followed the somewhat unusual situation of the appeal against said direction not being brought by the party to whom the direction was addressed by the HSO, but rather by the party from whom originated the complaints that gave rise to the investigation by the HSO that ended with the issuance of the direction. Said party, CUPE to be more specific, has exercised its right to appeal pursuant to subsection 146(1) of the Code, to wit that it feels aggrieved by the direction issued by HSO Mayne, on the basis that “while the direction correctly notes Air Canada’s failure to comply with the Code in providing timely responses to recommendations, it (the direction) is lacking in specificity and as a result is insufficient to ensure Air Canada’s compliance with the Code.” The appellant stresses that point by noting that Air Canada’s initial response to the direction failed to indicate compliance with the Code’s mandatory thirty days response time and instead indicated a continued intention to the contrary. The appeal seeks a variance of the Mayne direction by this Appeals Officer. Furthermore, there has been no formal in persona hearing by the undersigned Appeals Officer in this matter, although one had been scheduled to proceed on March 27, 2012. Rather, this appeal is being disposed of based upon consideration of the HSO’s investigation report, which was obtained following the issuance by an Appeals Officer of a production order on December 9, 2011, two telephone conferences held with counsel for both parties on February 23 and March 27, 2012, and the joint submission by both parties, for the undersigned’s consideration, of “Minutes of Settlement” endeavouring to respond to the direction issued by HSO Mayne in this matter. In light of this, it would appear that a brief descriptive background of what led to this outcome is in order.

Background

[3] This matter arises with the filing of 7 complaints against Air Canada, all alleging failure by said Air Canada to comply with its obligation to respond in writing within thirty days to recommendations made by the Calgary Inflight Services work place committee. Those complaints were made at various dates and covered a variety of subjects, as can be seen from the following excerpt from the direction issued by HSO Mayne on June 8, 2011:


• Flight satchel location on Embraer – September 17, 2010.
• A320 fold down work table – October 5, 2010.
• Calgary parking lot findings – November 2, 2010.
• Resetting “J” class seat – February 15, 2011.
• Right to refuse dangerous work procedures – February 8, 2011.
• Suspected communicable diseases – February 21, 2011.
• Fasten seat belt sign departing Calgary at 10,000 feet – February 15, 2011.

At the conclusion of his investigation into this matter on June 8, 2011, HSO Mayne expressed the opinion that paragraph 125(1)(z.10) of the Code had been contravened in that the employer had failed to respond in writing within thirty days to the recommendations concerning the seven matters mentioned previously and made on the dates specified above. The HSO further directed the respondent Air Canada to terminate the contraventions no later than June 22, 2011, with no additional indication as to how he saw this could be achieved, and to “present the results” to the HSO no later than July 6, 2011. While the direction may have been crafted in very general terminology offering no indication as to what the HSO intended the corrective steps to be, it is worth noting that the accompanying letter of the same date by the HSO did however include a statement that can be seen as indicative of what the HSO may have had in mind. The paragraph in question reads as follows:

Paragraph 125.(1)(z.10) of the Canada Labour Code, Part II is an enforceable duty designed to ensure the effective operation of committees and to ensure that issues are dealt with. Compliance should not be a problem when management, through its representation on the committee is aware of the need. The employer is likely to be tasked with developing and possibly implementing a protocol to comply with this duty. [My emphasis]

[4] In a letter to the HSO presented within the time limit specified by HSO Mayne for a response to his direction, Respondent Air Canada brought to the latter’s attention what it described as a “formal business process” that, upon consideration, appears to have been an effort to satisfy what the HSO had described in the letter mentioned above as the development and implementation of a protocol to comply with the employer’s duty pursuant to paragraph 125(1)(z.10) of the Code and consequently a response to the direction. This “business process” was described therein as follows:

• The workplace committees will be instructed to first send their proposed recommendation to the IFS [In-Flight Services] OSH department who will review and ensure it is complete
• The IFS OSH department will advise the workplace committee to whom the recommendation should be addressed to (i.e., the employer who has the authority to accept or reject the recommendation)
• The workplace committee will submit their recommendation to the designated employer representative with a copy to the IFS OSH department, their Base manager and Ms. Welscheid
• The IFS OSH department will be responsible to track all recommendations to ensure prompt responses
Air Canada recognizes that the Senior Vice President of Customer Service, Susan Welscheid, is the ultimate employer representing In-Flight Services, which is why she will be copied on all recommendations.

Without commenting on the acceptability or sufficiency of such a process within the ambit of paragraph 125(1)(z.10), a simple reading of the actual business process could lead one to understand, as appears to have been the case for the appellant, that it could allow for committee recommendations to be potentially put in the hands of the employer on two occasions with no indication as to when the 30 day time limit established by the Code would start to run. Following this, two events occurred in this case that take on considerable importance both as to their substance and their occurrence in time.

[5] First, on July 8, 2011, therefore within the time prescribed at subsection 146(1) of the Code to appeal directions, the appellant CUPE filed an appeal against the direction by HSO Mayne in a letter/notice under signature of its counsel. A perusal of that document clearly demonstrates that at that time, the appellant CUPE had already been informed in detail of the so-called “business process” that employer Air Canada had developed in its endeavour to respond to the Mayne direction. While it is not necessary at this time to examine in detail all elements of the said notice of appeal, one paragraph does clearly pinpoint the essence of the challenge. It reads as follows:

The Union submits that while the direction correctly notes Air Canada’s failure to comply with the Code in providing timely responses to recommendations, it is lacking in specificity and as a result is insufficient to ensure Air Canada’s compliance with the Code. Air Canada’s response to the direction fails to indicate compliance with the Code and indicates a continued intention to violate the Code. [My underlining]

Accordingly, The Union submits that the direction should be varied […] under the heading, “Remedy requested”.

Of considerable importance in the opinion of the undersigned is the fact that this notice of appeal was copied to HSO Mayne.

[6] The second event has to do with a very brief email from HSO Mayne to a Ms Julie-Anne Lambert from Air Canada, a person who, judging from her preceding email to the HSO, was directly involved in this matter. The communication from the HSO is dated July 13, 2011, thus after the Health and Safety Officer had been informed of the filing of an appeal against his direction. It states that it “confirme que nous acceptons les mesures de l’employeur” and that “the protocol that has been proposed is acceptable and that the employer will comply with 125(1)(z.10) by responding to the WPC recommendations within 30 days.” An inescapable fact that needs to be pointed out is that at the time of this reply, HSO Mayne had already been made aware that an appeal had been filed against his direction and of the reasons enunciated by the appellant in support thereof.
 
[7] As a matter of general practice by Appeals Officers, preparation of appeal hearings generally involves the holding of pre-hearing conferences by the Appeals Officer with the parties’ representatives or counsel. In this particular instance, as mentioned above, two such conferences did occur in the course of which the undersigned became aware and was informed by both parties that they were working towards a mutually satisfactory resolution to the issue raised by the appellant’s appeal, one that would put to rest the difficulties the appellant had not only with the direction’s lack of specificity but also with the so-called “business process” that respondent Air Canada had submitted to HSO Mayne, this with the intent of satisfying the requirements of paragraph 125(1)(z.10).

[8] On March 21, 2012, the undersigned was informed in writing of the parties having reached a settlement in this appeal, or rather on the issue at the heart of this appeal, and of their request that the minutes of such settlement be incorporated by the undersigned in a decision fully and finally determining the appeal. The wording of this agreed settlement is very specific not only as to the procedure to be followed in dealing with committee recommendations, but also as to where or to whom the said recommendations are to be addressed for consideration and reply, with a system being put in place to ensure compliance with the 30 days requirement established at paragraph 125(1)(z.10) of the Code. While it is important to record in great part the wording of said document in this decision, as it is done below, a no less important segment of the said document needs to be recorded herein as it does directly concern the so-called “business process” originally and unilaterally submitted by Air Canada to HSO Mayne. This segment, which essentially serves as premise to the actual substantive part of the settlement, states unequivocally that the actual so-called “business process” that Air Canada had provided to the HSO, purportedly in response to the direction, is being withdrawn. It reads as follows: “The formal Business Process set out in Air Canada’s letter of June 20, 2011 is being replaced by the following”. As a result, that which the HSO had considered as acceptable compliance to the direction by the latter has been withdrawn and there would therefore no longer be anything in front of the HSO that would purport to be a response by Air Canada to the officer’s direction.

[9] Although somewhat lengthy, the text of the settlement needs to be reproduced here. It reads as follows:

A. The Air Canada In-Flight Services (“AC IFS”) policy and work place committees will submit all jointly agreed recommendations (“Recommendations”) to the designated manager responsible for the subject matter of the recommendation, as identified on the List of Designated Managers attached hereto (the “Designated Manager”). The Designated Managers on the List have the authority to act on the submitted Recommendation alone or in consultation with other managers.

B. Air Canada will be responsible for advising the AC IFS policy and work place committees in writing of any change to the List of Designated Managers in a timely manner and, where practicable, in advance of the change. In cases where the change in Designated Manager has not been notified in advance to the committees, the thirty day period for responding to the Recommendation still begins on the date the Recommendation was sent to the original Designated Manager identified on the List of Designated Managers.

C. A copy of all Recommendations sent to a Designated Manager will also be sent to the AC IFS OSH department, the General Manager of the respective base (in the case of a work place committee Recommendation) and the Senior Vice President of Customer Service, who is the ultimate employer responsible for In Flight Service.

D. The Designated Manager will respond in writing to all Recommendations within thirty days after first receiving them, indicating what, if any, action will be taken and when it will be taken. Regardless of any subsequent communications between the employer and the respective policy or work place committees concerning the Recommendation, the date the Recommendation has been received by the employer for the purposes of s.125(1)(z10) of the Code is the date that it was first sent by the respective committee to the original Designated Manager.

E. If the original Designated Manager refers a Recommendation to another Designated Manager for response, that person must respond to the committee that submitted the Recommendation within thirty days of the date that the original Designated Manager received the Recommendation. The original Designated Manager will advise the submitting committee when a Recommendation has been referred to another Designated Manager.

F. The AC IFS OSH/Return to Work Specialist or another person designated by Air Canada will record the date a Recommendation was received by the Designated Manager from the work place or policy committee and the date of the required response from the employer, using the WPC/PC Recommendations Tracking Grid.

G. The policy and work place committees will also maintain a tracking grid of the date the Recommendation was provided to the Designated Manager, any referrals to other Designated Managers and the date of the required response from the employer.

The above is followed in the document by the statement that the Minutes of Settlement are to be submitted to the undersigned to be incorporated into a consent order fully and finally determining the appeal.

Issue(s)

[10] The direction issued by HSO Mayne came as a result of the latter first coming to the conclusion that in the case of the seven complaints that had been made and are referred to above, there had occurred a contravention of the Code, more specifically to paragraph 125(1)(z.10), and that this finding warranted the issuance of a direction, an order, that the employer cease such contravention in the case of said complaints as well as in the case of any other recommendation by the work place or policy health and safety committees. While it is indeed difficult to separate or distinguish the conclusion that the Code was contravened in the case of the seven complaints, a finding of fact arrived at by the HSO, from the actual order that followed, the fact remains that in this instance of an appeal filed not by the party to whom the direction was addressed but by the party that in principle would be seen as benefiting from the actual direction, it is not the occurrence of the contravention(s) that is challenged but the specificity, for lack of a better word, of the ensuing order by the HSO. In this respect, the unavoidable fact is that the direction simply orders that Air Canada cease the identified contravention(s) no later than a certain date, but provides no indication as to how this may be achieved, short of the excerpt to the accompanying letter previously mentioned, which in itself cannot and should not be seen as part of the direction. This being said therefore, and there appearing to be no question raised by either party that paragraph 125(1)(z.10) has been contravened, and thus the direction not warranted, we are left with the sole issue as to whether the said direction is specific enough to ensure compliance by Air Canada. This has to be considered in light both of the settlement or agreement arrived at by the parties at appeal and, an element I consider of determinative importance, the fact that the appellant is not seeking to have the direction rescinded but rather varied in a manner that would facilitate compliance with the legislation.

Submissions of the parties

[11] What precedes to this point only serves to illustrate that this particular case shows rather unique characteristics in that it offers two parties who are essentially in agreement as to the outcome but are seeking to have this outcome formulated in such a manner that both parties would agree and even be of one mind as to its meaning and enforceability. It is for that reason that both parties clearly stated their lack of interest in having their settlement referred to HSO Mayne for his acceptance and sanction, with the ensuing step seeing the appellant withdrawing its appeal, this being one avenue suggested by the undersigned on the occasion of the final conference with the parties on March 27, 2012. Rather, the parties are asking that the said settlement be submitted to and examined by the undersigned within the scope of the issue raised by the appellant and the purpose of paragraph 125(1)(z.10), with the ensuing action by this Appeals Officer being the varying of the original direction by incorporation of the actual joint settlement, thus attaining the specificity sought by the appellant and adhered to by the respondent and conveying to such the enforceable nature of a decision by an Appeals Officer.

[12] Apart from the above joint intention by both parties and their expressed position, stated at the March 27, 2012, conference that this settlement satisfied the letter and intent of the legislation and should be expressed in the form of an unusually specific direction emanating from an Appeals Officer decision to ensure its enforceability, in itself a rather unlikely joint purpose, no other submissions were formulated to the undersigned Appeals Officer, except for Air Canada’s statement that its agreement to the present settlement and the sought varied direction, as well as its withdrawal of the previously submitted protocol in response to the Mayne direction, did not and should not be considered as an admission that the said initial protocol failed to satisfy the requirements of the Code and thus, the direction.

Analysis

[13] This matter needs to be considered in light of a number of unorthodox, if not unusual, elements. First, the claim underlying this appeal is not that the direction issued by HSO Mayne was unfounded, but rather that it lacked specificity, where corrective response or action is concerned, such that it possibly rendered its application and enforceability within the ambit of paragraph 125(1)(z.10) problematic. Second, one cannot begin to examine the issue that is raised by the appeal without taking into account that both parties to the appeal have jointly presented what they believe the direction should order be done with a great deal more specificity. That being the case however, I cannot consider the issue of specificity of the proposed joint settlement without first considering whether in substance, it would satisfy the letter and intent of the legislation, and more precisely, paragraph 125(1)(z.10). Third, while this appeal relates to the purported lack of specificity of the direction, and I understand this to mean that the direction lacks specificity as to the corrective actions or measures to be taken by the employer/respondent relative to a contravention(s) to the Code that has been found by the HSO to have occurred, neither this appeal nor any other has been initiated to challenge that the contravention(s) did in fact occur. My decision therefore cannot and will not consider whether the said contravention(s) occurred.

[14] Paragraph 125(1)(z.10) states that the employer, in this case Air Canada, shall “respond in writing to recommendations made by policy and work place committees or the health and safety representative within thirty days after receiving them, indicating what, if any, action will be taken and when it will be taken.” The wording of the provision is really straightforward and, in my opinion, does not leave much room for interpretation. In this respect, I am in complete agreement with the wording used by HSO Mayne in his accompanying letter to his direction, whereby he stated that “paragraph 125(1)(z.10) of the Canada Labour Code, Part II is an enforceable duty designed to ensure the effective operation of committees and to ensure that issues are dealt with.”

[15] It has been the constant practice of HSOs and Appeals Officers to formulate the directions they may be called upon to issue using very general and non-specific terminology, thereby avoiding the identification of a specific corrective measure that, because of the nature of a direction, would of necessity be to the exclusion of any other, and therefore deprive any employer or party subjected to a direction from the flexibility of fashioning a corrective measure or measures more attuned to the characteristics of a given work place or work situation, all the while still satisfying the requirements of the legislation. This serves to recognize, in my opinion, that HSOs and Appeals Officers, while generally knowledgeable and even specially informed on the specifics, workings and even intricacies of the work place, cannot be expected to be as fully cognizant of the workings and functioning of a work place, environment or situation as those parties, employer and employees alike, called upon to operate on a continuous basis within such work place, environment or situation. The direct consequence of such a practice is that it displaces the involvement of the enforcing authority that would be the HSO in evaluating the sufficiency of any measure responding to a direction to after it has been developed and put in place. While I can acknowledge the existence of such a practice, an attentive reading of the legislation reinforces my opinion that there is nothing in the legislation that would prevent or prohibit the fashioning of directions in a more particularized or specific fashion, such as what the parties to this appeal are seeking in asking that I vary the direction previously issued by HSO Mayne to identify specifically as the corrective measure to be implemented to properly respond to the finding of contravention by the HSO, that which the parties have developed jointly to respond to recommendations by the work place or policy committees. I have no hesitation however in stating, given the general practice that I have just mentioned, that such intervention by a HSO or Appeals Officer should occur only when dictated by special circumstances.

[16] In my opinion, the present case does effectively offer such special circumstances, where a contravention or contraventions have been identified and not contested through the appeal process, but where both parties to the issue have jointly agreed on a means or protocol that would govern their future actions so as to prevent the reoccurrence of such contraventions, evidently on condition that the said protocol or process favoured by both parties satisfy the requirements of the legislation.

[17]  Paragraph 125(1)(z.10) of the Code formulates the employer obligation in such a manner that four elements have to be satisfied. It is the employer, thus a party acting as or authorized to act on behalf of the employer that must respond to the committee recommendation(s). That response must be provided in writing, and although not expressly stated by the Code, it is safe to say that the response must be given to the originator of the recommendation(s). The employer’s written response needs to be provided to the originator of the recommendation(s) within thirty days of being received by the employer. Finally, the response needs to indicate what, if any, action will be taken by the responding party and when it will be taken. As I stated previously, the language of the provision is rather straightforward and leaves little room for interpretation. This does not mean that in formulating a process to meet the obligation and satisfy all of its elements, a party or parties cannot expand on the general terminology of the statute, without restricting its intent and meaning, to better reflect the circumstances that are particular to this employer. In my opinion, through the protocol developed by the parties and which is cited at paragraph 9 above, that is exactly what the parties have achieved in adapting the response protocol to the specificity of their own circumstances, thereby obviating the lacking specificity of the direction as issued, while adhering entirely to all the requirements of the legislation. They are now asking that this be incorporated into a varied direction and, in my opinion, there is no reason why this should not be.

Decision

[18] For these reasons, I agree with HSO Mayne that a contravention to paragraph 125(1)(z.10) of the Code did occur. However, in light of all that precedes, the direction issued on June 8, 2011 by HSO Luc Mayne is varied as per the settlement arrived at by the parties.

 
Jean-Pierre Aubre
Appeals Officer 

 

APPENDIX 1


IN THE MATTER OF THE CANADA LABOUR CODE, PART II OCCUPATIONAL HEALTH AND SAFETY

DIRECTION TO AIR CANADA UNDER SUBSECTION 145(1)

Health and Safety Officer  Luc Mayne conducted an investigation into 7 complaints received involving Air Canada. Air Canada being an employer subject to the Canada Labour Code, Part II.

The undersigned Appeals Officer is of the opinion that the following provisions of the Canada Labour Code, Part II, have been contravened:

125(1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employer in an work place that is not controlled by the employer, to the extent that the employer controls the activity,

(z.10) respond in writing to recommendations made by the policy and work place committees or the health and safety representative within thirty days after receiving them, indicating what, if any, action will be taken and when it will be taken

The employer did not respond in writing within 30 days to the following recommendations made by the Calgary inflight Services work place committee:

• Flight satchel location on Embraer – September 17, 2010
• A320 fold down work table –October 5, 2010
• Calgary parking lot findings – November 2, 2010
• Resetting “J” class seat – February 15, 2011
• Right to refuse dangerous work procedures – February 8, 2011
• Suspected communicable diseases – February 21, 2011
• Fasten seat belt sign departing Calgary at 10 000 feet – February 15, 2011

Therefore, upon receipt of the following decision, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(b) of the Canada Labour Code, Part II, to terminate the contraventions by adopting and applying the following process in responding to recommendations made by policy and work place committees or the health and safety representative:

• The Air Canada In-Flight Services (“AC IFS”)policy and work place committees will submit all jointly agreed recommendations (“Recommendations”) to the designated manager responsible for the subject matter of the recommendation, as identified on the List of Designated Managers attached hereto (the “Designated Manager”)to form part of this direction. The Designated Managers on the List have the authority to act on the submitted Recommendation, alone or in consultation with other managers.

• Air Canada will be responsible for advising the AC IFS policy and work place committees in writing of any change to the appended List of Designated Managers in a timely manner and, where practicable, in advance of the change. In cases where the change in Designated Manager has not been notified in advance to the committees, the thirty day period for responding to the Recommendation still begins on the date the Recommendation was sent to the original Designated Manager identified on the appended List of Designated Managers.

• A copy of all Recommendations sent to a Designated Manager will also be sent to the AC IFS OSH department, the General Manager of the respective base (in the case of a work place committee Recommendation) and the Senior Vice President of Customer Service, who is the ultimate employer responsible for In Flight Service.

• The Designated Manager will respond in writing to all Recommendations within thirty days after receiving them, indicating what, if any, action will be taken and when it will be taken. Regardless of any subsequent communications between the employer and the respective policy or work place committees concerning the Recommendation, the date the Recommendation has been received by the employer for the purpose of paragraph 125(1)(z.10) of the Canada Labour Code is the date that it was first sent by the respective committee to the original Designated Manager.

• If the original Designated Manager refers a Recommendation to another Designated Manager for response, that person must respond to the committee that submitted the Recommendation within thirty days of the date the original Designated Manager received the Recommendation. The original Designated Manager will advise the submitting committee when a Recommendation has been referred to another Designated Manager.

• The AC IFS OHS/Return to Work Specialist or another person designated by Air Canada will record the date a Recommendation was received by the Designated Manager from the work place or policy committee and the date of the required response from the employer, using the WPC/PC Recommendations Tracking Grid.

• The policy and work place committees will also maintain a tracking grid of the date the Recommendation was provided to the Designated Manager, any referrals to other Designated Managers and the date of the required response from the employer.

Varied as identified in underlined text above, at Ottawa, this 18th day of July, 2012.

 


Jean-Pierre Aubre
Appeals Officer

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