Archived - Decision: 94-003 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code, Part II
of a direction issued by a safety officer

Decision No. 94-003

Applicant: Canada Post Corporation
Mississauga, Ontario
Represented by: R. Chris Wartman, Counsel

Respondent: Naseem Qureshi, employee
Represented by: Andre Kolompar, President
Canadian Union of Postal Workers
Toronto Local

Mis en Cause: Rod J. Noel
Safety Officer
Human Resources Development Canada

Before: Serge Cadieux
Regional Safety Officer
Human Resources Development Canada

An oral hearing was held on April 19, 1994 in Toronto, Ontario. Although Mr. Qureshi, the complainant in this case, and Mr. Kolompar, his union representative, were duly informed of the hearing, neither attended the hearing. A subsequent request for written submissions was also ignored by the respondents.

Background

This case concerns alleged disciplinary actions taken by Canada Post Corporation against Mr. Qureshi, a Material Handling Equipment (MHE) operator, because the complainant has reported hazardous occurrences to his employer and also because he has raised various safety issues. Mr Qureshi alleges that his rights under section 147 of the Canada Labour Code, Part II were violated.

Safety officer Rod Noel investigated in this case. He, and another safety officer, visited the workplace on four separate occasions for the purpose of reviewing reports and conducting interviews.

The facts gathered by the safety officer show that Mr. Qureshi was involved in a first accident with a term employee of Canada Post, Ms. Linda Post, also a MHE operator. Mr Qureshi's MHE was struck from behind by Ms. Post's MHE. Accident investigations reports were completed by the employer.

It should be noted that threats of violence, obscene gestures and foul language is alleged to be used repeatedly by Mr. Qureshi against Ms. Post throughout the incidents discussed in this text. Mr. Qureshi strongly denies these allegations and claims he is unfairly treated because of his race and colour. Ms. Post, on the other hand, alleges that Mr. Qureshi, a full-time employee, continually harasses her because he considers that term and casual employees, like herself, are less competent MHE operators and therefore are accident prone.

In this instance, the safety officer expressed the view that there appeared to be a strong bias against the applicant and in favour of Ms. Post as evidenced by the report of one supervisor. That supervisor indicated that Mr. Qureshi committed an unsafe act and had an improper attitude. Mr. Qureshi complained, in writing, to the safety and health committee and to his employer about the handling of accident investigations and about general material handling safety problems involving term and casual employees. Mr. Qureshi received no reply from the committee and neither from his employer.

Approximately three months later, the complainant and Ms Post were involved in another incident involving a collision between their respective MHE. Mr. Qureshi reported the incident to his employer however, no formal accident investigation was carried out by the Corporation in this instance. As a result of a complaint filed by Mr. Qureshi on May 25, 1993, Labour Canada (now Human Resources Development) received, on June 24, 1993, an Assurance of Voluntary Compliance (AVC)1 from the Corporation that all records of discipline against Mr. Qureshi would be removed.

On August 23, 1993, Mr. Qureshi filed another complaint with the safety officer. The subject of the complaint is a letter of discipline to his personal file, warning the complainant of possible future discharge. Ms. Post had written a letter to one of Mr. Qureshi's supervisor in which she detailed a number of incidents from February 11, 1993 to July 6, 1993, which she alleged were examples of harassment and threats to her physical well-being by Mr. Qureshi.

The incidents referred to by Ms. Post and the subsequent actions of Canada Post, had been addressed in the AVC of June 24, 1993. The safety officer was of the view that the Corporation and Labour Canada had consensually agreed that the discipline given to the complainant was not substantiated by fact or by a fair investigation of the matter and would be removed. The safety officer felt that these issues would be stricken from the record and not revisited.

The investigation carried out by the safety officer concluded with the following observation:

"Then, following the AVC received by Labour Canada in June of 1993 a repeat discipline was allowed to be given to the complainant, Qureshi, in direct contravention of that AVC."

The safety officer then proposed the following resolution:

"It is the opinion of this officer that Canada Post has violated Section 147(a)(iii) of the Canada Labour Code - Part II by the letter of discipline given to Naseem Quereshi (sic) on May 17, 1993 and by giving him a repeat letter of discipline on August 10, 1993. It appears that in a number of incidents where Mr. Quereshi (sic) has raised concerns or reported incidents involving unsafe operations or movement of equipment, which involved Linda Post, the employer has concentrated more on Linda Post's counter statement's or allegations of wrong doings by Mr. Quereshi (sic). In the absence of any fair or thorough investigation of Mr. Quereshi's (sic) complaints about safety and reports of accidents/incidents involving himself and other employees - Labour Canada can only conclude that the employer's response was meant to intimidate Mr. Quereshi (sic), and to deter him from reporting hazardous occurrences and from writing or voicing concerns about the safety of his workplace.

The employer has been Directed under Section 145(1) to cease the contravention of 147(a)(ii) and (iii)."

The direction, in Appendix A, is the subject of the current review.

Submissions of the employer

The employer's submissions are on record. While Mr. Qureshi maintains that he is being disciplined for reporting hazardous occurrences, the Corporation explains it investigates every time a complaint is made, as required by the collective agreement or the Canada Labour Code, whether the complaint deals with a hazardous occurrence or an alleged discriminatory practice or misconduct of an employee. The Corporation argues that it has taken appropriate action in the case of both employees following the reporting of the collision of their MHE.

The Corporation does not agree that there was a bias against Mr. Qureshi and neither that their investigations were unfair or unbalanced. The Corporation asserts that letters sent to
Mr. Qureshi's personal file do not result from his reporting of hazardous occurrences or from raising safety related issues but are a result of his unacceptable behaviour during the incidents reported. The Corporation had the responsibility to investigate into the allegations of Ms. Post and it assumed that responsibility fairly and diligently.

Decision

Assuming the letter to Mr. Qureshi's personal file constitutes disciplinary action, the issue to be decided in the instant case is whether Mr. Qureshi was disciplined because he has reported hazardous occurrences and because he has raised issues of safety. The operative word in the foregoing statement is the word "because".

Subparagraphs 147(a)(ii) and (iii) of the Canada Labour Code, Part II provide as follows:

147. No employer shall
(a) dismiss, suspend, lay off or demote an employee or impose any financial or other penalty on an employee or refuse to pay the employee remuneration in respect of any period of time that the employee would, but for the exercise of his rights under this Part, have worked or take any disciplinary action against or threaten to take any such action against an employee because that employee
(i) has testified or is about to testify in any proceeding taken or inquiry held under this Part,
(ii) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the safety or health of that employee or any of his fellow employees, or
(iii) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part. (my underlining)

Clearly then, to decide this case, I must look at the circumstances that gave rise to the direction under review and establish a direct relationship between the reporting of the hazardous occurrences and the disciplinary action taken against Mr. Qureshi. I must logically come to the conclusion that the Corporation's motives in disciplining Mr. Qureshi "was meant to intimidate Mr. Quereshi (sic), and to deter him from reporting hazardous occurrences and from writing or voicing concerns about the safety of his workplace."

The regional safety officer, acting under section 146 of the Code, does not benefit from the burden of proof provision found at subsection 133(6) of the Code. In that case, the burden of proof falls upon the employer in those cases where an employee exercised his right to refuse to do dangerous work and subsequently complained to the Canada Labour Relations Board that his employer has taken disciplinary action against him for having exercised that right. Consequently, the regional safety officer must conduct his own inquiry and form his own opinion in cases where an employee alleges contravention of section 147 of the Code. It is also important to note that the regional safety officer has no remedial powers.

I find it is particularly difficult, in the instant case, to form a sound and enlightened opinion as the issue to be resolved involves an evaluation of the credibility of the employees involved. Their conspicuous absence from these proceedings goes a long way to discredit their story, particularly that of the complainant, Mr. Qureshi. I need not dwell on the importance of the active participation of the complainant, or his representative, particularly in this case which involves allegations of such serious nature.

The responsibility of the regional safety officer, under subsection 146(3) of the Code, is to "inquire into the circumstances of the direction...". Therefore, in the absence of the principal witnesses, I must rely substantially on the submissions of the employer to decide this case. Nonetheless, I am taking into consideration the report of the safety officer.

Given the uncontradicted evidence adduced in this case, I am satisfied that the Corporation has effectively responded to the allegations of Mr. Qureshi. I am also satisfied that the conclusions reached by the safety officer are drawn primarily from inferences which cannot be substantiated by fact.

I have come to the conclusion that the complainant and Ms. Post are engaged in a personal feud, one that is rapidly degenerating. The reports of accidents or other incidents or issues of safety made by Mr. Qureshi are mostly related to one employee, Ms. Linda Post. It is evident that Mr. Qureshi's main concern is directly and primarily related to his personal relationship with Ms. Post. In my view, this is not a safety and health issue as envisaged by the Canada Labour Code, Part II.

In my opinion, Mr. Qureshi's behaviour is certainly not without reproach and it is casting a shadow over his general concern for safety. I believe Mr. Qureshi is expressing this concern in a most aggressive manner which causes Canada Post Corporation to react primarily to his behaviour, not to his reporting of hazardous occurrences. The investigations of the Corporation concentrated much on Mr. Qureshi's alleged behaviour. Nonetheless, the Corporation did address the safety issues during the investigations and, whether rightly or wrongly, did recommend corrective action. Also, I have found no evidence in any of the documents submitted, which would support the conclusion reached by the safety officer, that the Corporation was taking action against Mr. Qureshi because of safety and health issues.

I must set aside the conclusions reached by the safety officer because of the inferences drawn which I believe are not based on pertinent facts. For example, the safety officer concluded that a bias against Mr. Qureshi existed due to the wording of letters sent to the employees personal files, the use of different scripts in writing those letters as well as the tone of the letters, the emphasis on the allegations of Ms. Post which, according to the safety officer, appear to downplay the incidents, the absence of thorough accident investigations, etc. There exist no solid evidence of the Corporation acting as the safety officer alleges and in the absence of evidence to the contrary, I cannot support the direction given by the safety officer.

This does not mean that I am criticizing the investigation of the safety officer. On the contrary, I find that the safety officer has carried out a model investigation in this case. However, in the absence of solid evidence, a direction which is not supported by fact is subject to close scrutiny. The safety officer must demonstrate where an actual violation occurred otherwise he cannot conclude that a contravention exists. In cases of this kind, the pitfalls are numerous. For example, the temptation to take side for the person who seems to be in a weakest position can be irresistible.

I understand that Mr. Qureshi has lodged a grievance under his collective agreement. As noted by Mr. Wartman during his final submissions in this case, this issue can best be resolved by an arbitrator under the collective agreement who is fully qualified to deal with labour relations matters or any other alleged discriminatory practice or misconduct of an employee. However, from the perspective of the Code, I find that I cannot establish a link between the reporting of hazardous occurrences and the disciplinary action taken against him, if any.

For all the above reasons, I hereby rescind the direction issued by safety officer Rod J. Noel, on the 16th day of November 1993, to Canada Post Corporation.

Decision rendered on May 26, 1994

Serge Cadieux
Regional Safety Officer

Appendix A

IN THE MATTER OF THE CANADA LABOUR CODE - PART II
(OCCUPATIONAL SAFETY AND HEALTH)

DIRECTION TO EMPLOYER UNDER SUBSECTION 145(1)

On September 8, 20, 22, and October 14, 1993 the undersigned Safety Officer conducted an investigation in the work place operated by Canada Post Corporation being an employer subject to the Canada Labour Code, Part II, at 4567 Dixie Road, Mississauga, Ontario, the said workplace being sometimes known as Gateway Bulk Mail Facility.

The said Safety Officer is of the opinion that the following provision of the Canada Labour Code, Part II is being contravened:

Paragraph 147(a)(ii) and (iii) of the Canada Labour Code - Part II

An employee, Naseem Quereshi, has been disciplined on two occasions by his employer because of his reporting of hazardous occurrences in his workplace.

An Assurance of Voluntary Compliance (AVC) was received on
June 24, 1993 from the employer assuring that the discipline of May 10, 1993 from Supervisor Don Gibbs would be removed.

This was confirmed by Shift Superintendent Karl Dorfmueller on June 29, 1993.

On August 10, 1993 employee Quereshi received a second letter of discipline.

It is the opinion of the Safety Officer that the employer has failed to comply with the AVC, and has taken disciplinary action against the employee.

Therefore, you are HEREBY DIRECTED, pursuant to Subsection 145(1) of the Canada Labour Code Part II, to terminate the contravention no later than November 30, 1993.

Issued at Mississauga, Ontario. this 16th day of November 1993."
RSO Decision No.: 94-003

Applicant: Canada Post Corporation (CPC)

Respondent: Canadian Union of Postal Workers (CUPW)

A direction under subsection 145(1) of the Canada Labour Code, Part II was given by a safety officer to CPC to stop contravening subparagraphs 147(a)(ii) and (iii) of the Code. Disciplinary action was allegedly taken by CPC because an employee reported hazardous occurrences.

On appeal of the direction, the RSO noted that the absence of the complainant and of his representative from the hearing was important in deciding the case because the issue to be decided involved, to a great extent, the credibility of the complainant. The RSO also noted that he does not benefit from the burden of proof found at section 133 of the Code.

The RSO, in inquiring into the matter, found that the safety officer did not rely on solid evidence to conclude to a contravention of the Code but drew inferences from non pertinent facts.

The RSO rescinded the direction on the basis of the absence of relevant evidence to support the direction.