Archived - Decision: 95-018 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. 95-018

Applicant: Mr. Mike Milcik

Canadian Airlines International Ltd.

Represented by: Mr. Harold C. Lehrer

Interested party:The Attorney General of Canada

Department of Justice Canada

Represented by: Mr. Raymond Piché and

Ms. Nadine Perron

Mis-en-cause:Denis Caron

Safety Officer

Human Resources Development Canada

Before: Serge Cadieux

Regional Safety Officer

Human Resources Development Canada

A hearing was held on June 27 and 28, 1995 and September 16, 1995 in

Montreal, Quebec.

Intervention of the Attorney General of Canada

The Attorney General of Canada sought leave to intervene in the hearing

in this case. The Attorney General of Canada argued that since it was

possible that no party would intervene in support of the said

directions, he had all the necessary interest in arguing that the

impugned directions were consistent with Part II of the Canada Labour

Code (hereinafter the Code). The Attorney General of Canada was

therefore authorized to intervene.

Background

The facts

On January 21,1995, a work accident that caused the death of three

employees of an employer covered by the Code, namely, the airline

Canadian Airlines International Ltd. (hereinafter Canadian), occurred

at Mirabel International Airport.

This accident occurred while three employees of Canadian and their

fellow workers were de-icing1 a Boeing 747-400 aircraft belonging to

the national airline Royal Air Maroc (hereinafter called RAM). The

accident happened when the RAM aircraft began to move while de-icing

was still in progress. As result, the aircraft's rear stabilizers

struck the hydraulic booms that were supporting the buckets, thus

overturning the two trucks performing the de-icing. The three

employees of Canadian in the buckets were thus thrown to the ground and

died as a result of their fall.

The inquiry

On January 21, 1995, Mr. Denis Caron, a safety officer, visited Mirabel

International Airport to conduct an inquiry pursuant to the Code. The

safety officer reported that "on the evening of the accident,

Mr. Mike Milcik was acting as De-Icing coordinator "ICEMAN" (De-icing

Coordinator), in which capacity he was the alter ego2 of the

employer, Canadian.

In the course of his inquiry, the safety officer took the following

initiatives:

- he analysed the brief description of Mr. Milcik's job;

- he visited the de-icing centre three times;

- he questioned Mr. Milcik in the presence of a number of people;

- he gathered various documents, including:

- the de-icing procedure of Canadian;

- the transcript of the questioning of Pierre Smarlak by

Canadian;

__________

1 For information purposes, de-icing is a procedure used to melt

frost, ice or snow that accumulates on an aircraft or to prevent one or

another of the aforementioned from forming or accumulating.

2 "Alter ego" is an expression derived from Latin, the literal

meaning of which is "another of oneself". An alter ego is a reliable

person whom one can ask to do anything in one's place.

- the transcript of the questioning of Alain Giroux by Canadian;

and

- various statements which he recorded and which were signed by

Messrs. Giroux, Smarlak and Milcik.

Relying on Canadian's de-icing procedures (paragraphs 3-7-13), the

safety officer noted that "the only two types of aircraft that could be

de-iced while the engines were running were the Boeing 737-200s and

Airbus A320-200s of Canadian".

Based on the preceding, the safety officer expressed the following

opinions:

- Mr. Milcik, the "Iceman", was responsible for de-icing operations

on the evening of the accident;

- Mr. Milcik was responsible for determining whether de-icing was to

be performed with the engines running, which responsibility he did

not discharge;

- Mr. Milcik was aware that Mr. Smarlak had told the pilot to leave

the engines of the Boeing 747-400 running;

- Mr. Milcik did not know whether anyone was really qualified to de-

ice the Boeing 747-440 while its engines were running and yet he

still let Mr. Smarlak de-ice the aircraft while the engines were

running; and

- Mr. Milcik was aware that the background noise created when the

engines of a Boeing 747-400 were running could interfere with

communication between the truck driver and the bucket.

The direction

In conclusion, the safety officer was of the opinion that Canadian had

contravened section 124 of the Code and issued a direction (APPENDIX-A)

to Mr. Milcik, whom he considered the alter ego of the employer,

Canadian. The direction was issued by the safety officer on March 15,

1995, pursuant to subsection 145(1) of the Code, for a contravention of

section 124 of the Code.

Mr. Milcik requested, through Mr. Lehrer, a review of this direction

because he felt aggrieved by the said direction since he was not the

employer's representative, let alone its alter ego.

Submission on behalf of the employee

Mr. Lehrer's detailed arguments were entered in the record. He made

numerous observations during the hearing in this case. His principal

observations concerned the fact that Mr. Milcik was not the employer's

representative in this case and his name therefore should never have

appeared in the direction.

Mr. Lehrer's first observation concerned Mr. Milcik's job description.

Mr. Lehrer noted that the safety officer relied on a computerized

version of the description of the "Iceman" job dated January 22, 1995,

one day after the accident. However, in his report of inquiry, the

safety officer submitted in evidence a version dated October 1994. Mr.

Milcik stated that he had never seen this computerized version, which

led Mr. Lehrer to express doubt concerning it because if Mr. Milcik was

the employer's representative, then why would he not have seen a copy

of the update of this job description?

Mr. Lehrer found it strange that everyone, i.e., personnel both inside

and outside Canadian, including the safety officer, considered Mr.

Ritchie, Mr. Lopes, Mr. Dirienzo, Mr. Powell and other members of

management as representatives of the employer, but not when the

direction of March 15, 1995 was issued to Mr. Milcik in his capacity as

a representative of the employer. Mr. Lehrer noted that Mr. Milcik

never received a copy of any of the correspondence exchanged in this

case for the simple reason that Canadian did not consider him a member

of management, let alone a representative of the employer. It was the

above-mentioned members of the management of Canadian who exchanged

correspondence and made the decisions.

Mr. Lehrer also observed that when the safety officer issued directions

to the employer or exchanged correspondence with it, he knew very well

to whom to send the documents, i.e., to Mr. Lopes or

Mr. Ritchie. Moreover, the safety officer rescinded the directions

issued to Canadian after reaching an agreement with this company

concerning de-icing procedures while the engines were running.

Mr. Milcik never received a copy of this correspondence exchanged

between the representatives of Canadian and the safety officer. In

fact, the very logic of this direction escaped Mr. Lehrer: the safety

officer issued a direction to Canadian on February 4, 1995, rescinded

it on February 23, 1995, and issued another direction to the employer

on March 15,1995 through Mr. Milcik.

Mr. Lehrer submitted that Mr. Milcik's position title was Senior Lead

and not "Iceman", as the safety officer claimed. By analogy, a Senior

Lead was like a team leader. A team leader could distribute work to

employees but was not a member of management and did not represent

management. According to Mr. Lehrer, "the dividing line is who sets

policy and who implements it". Although Mr. Milcik could, in certain

cases, distribute work, he never set policy at Canadian and never had

to decide what to do, when to do it or who should do it. According to

Mr. Lehrer, it was impossible for a member of the union like Mr. Milcik

to also be a member of management. Moreover, during the Coroner's

investigation, Mr. Dirienzo, in answer to a question put to him by Mr.

Lehrer, identified the managers responsible for de-icing operations at

Mirabel as being himself, Mr. Lopes and M. Mario Rosa and stated that

no one in the union was a member of management.

Moreover, Mr. Lehrer pointed out, there was in fact someone who

decided who would be the "Iceman" for a particular evening or even for

a particular operation, that is, for the de-icing of a particular

aircraft. However, it was management, not Mr. Milcik, who decided who

would be assigned this work. When the "Iceman" was designated for an

operation, or possibly for a given period, he had to follow his

employer's instructions by assigning the work as "Iceman" and this

policy of assigning work had already been set by management.

Moreover, Mr. Lehrer argued that the safety officer knew that Mr. Ian

Lopes, the Duty Manager at Mirabel Airport, was physically present on

the evening of the accident and that he was the one who was in charge

of the premises, and finally, that Mr. Milcik reported to him. If he

wanted to issue a direction to the employer, Canadian, why not address

it to Mr. Lopes as he had done on February 4, 1995 or to Mr. Ritchie or

Mr. Dirienzo with whom he had held discussions concerning the de-icing

of aircraft while their engines were running. If he wanted to issue

the direction to the employee, he could have done so by issuing a

direction to Mr. Milcik, as he had done in the case of Mr. Smarlak.3

There was no doubt, on reading the text of section 124 of the Code,

that the safety officer issued the direction to the employer in this

case. However, he identified the employee as a representative of the

employer and this, argued Mr. Lehrer, made the direction very vague and

very ambiguous.

__________

3 A direction was in fact issued to Mr. Smarlak as an employee. This

direction was the subject of a request before the regional safety

officer and is to be heard at a later date.

Submission of the Attorney General of Canada

The detailed submission of the Attorney General of Canada was entered

in the record. Mr. Piché recognized that the direction was in fact

addressed to the employer, Canadian. Mr. Piché also recognized that

Canadian's official policy was not to de-ice Boeing 747s while their

engines were running. However, officials of Canadian at Mirabel began

testing the de-icing of these aircraft with their engines running and

began training personnel to perform this operation even though certain

members of Canadian's management considered this dangerous. It

appeared, then, that Canadian's official policy, which existed at the

same time as the tests were being conducted, created what was, to say

the least, an ambiguous situation because, in Mr. Piché's words,

"there were no directives or instructions; the manuals were not

amended to specify in what circumstances de-icing should be done with

the engines running".

With regard to Mr. Milcik's position and his designation by the safety

officer as a member of management or a representative of the employer,

Mr. Piché said the following:

"We have seen from Mr. Milcik's testimony that the position that

he occupies is unionized. He is not a member of management. He

has no decision-making authority as regards the formulation of

policy or the implementation of these policies. Mr. Milcik's

role is to carry out decisions. He is the company's spokesperson

in dealing with the employees. He is the one who tells the

employees what the employer's policies are. His role is limited

to ensuring that the employer's directives are carried out by

the employees and he has no decision-making power, and in that

regard, I fully agree with my colleague, Mr. Lehrer, when he

tells you that Mr. Milcik has no management functions, and this

seems perfectly clear."

Mr. Piché also confirmed that it is the management of Canadian that

designates the "Iceman" and explained that Mr. Milcik is not the

employer. The employer, in Mr. Piché's words, "is really Mr. Milcik's

employer; moreover, it clearly says so in the direction". In fact,

the direction specifically stated that " Mr. Milcik works for Canadian

as senior lead". However, Mr. Piché pointed out that the reason why

Mr. Milcik's name appeared in the direction was because he was present

on the evening of the accident and because he had to oversee the

application of the employer's policies. The company's policy was not

to de-ice Boeing 747s while their engines were running, and it did not

enforce this policy.

Decision

The question I have to answer in this case is the following: was Mr.

Milcik acting on behalf of the employer on the evening of the accident

and did he therefore have to be identified as such in the direction?

The request for a review is based on Mr. Milcik's statement that he is

an employee who is not a member of management and that he was not

therefore representing the employer on the evening of the accident.

Subsection 122 (1) of the Code defines "employer" as follows:

"employer" means a person who employs one or more employees and

includes an employers' organization and any person who acts on

behalf of an employer."(emphasis added)

In this case, I cannot review the direction issued to the employer for

the simple reason that Canadian formally notified me, through Mr.

Dumont, its regular counsel, in a letter of June 14, 1995, that

Canadian did not intend to request a review of the directions issued to

the employer. Mr. Dumont argued that the direction issued to Mr.

Milcik was addressed to him personally and that it was only in this

capacity that Mr. Milcik could request a review of the said direction.

However, the safety officer stated that he issued the direction to Mr.

Milcik in his capacity as employer representative and not in his

capacity as an employee.

Consequently, if I conclude that Mr. Milcik is not the employer's

representative, I will then have to decide whether to simply strike

his name from the direction or identify another person who is a member

of management at Canadian and who was present on the evening of the

accident. Either way, the direction to the employer will remain.

Moreover, I will not have to determine whether Mr. Milcik was negligent

in the performance of his duties as "Iceman" on the evening of the

accident. In order to find him negligent, I would also have to be able

to issue a new direction to Mr. Milcik, and this power I do not have

under section 146 of the Code. The regional safety officer can only

confirm, rescind or vary a direction (subsection 146(3)). He cannot

issue a new direction in discharging his function.

In the instant case, everyone agrees that Mr. Milcik is not a member of

management at Canadian. Mr. Lehrer is insistent on this point. Mr.

Piché also accepts this position and recognizes without hesitation that

Mr. Milcik is not a member of management and that he has none of the

powers that are associated with this function. Mr. Milcik himself says

he is an employee and not a member of management. However, Mr. Piché

alleges that on the evening of the accident, the safety officer

identified Mr. Milcik as the employer's representative because he was

the one who was present at the scene of the accident and who was

overseeing the application of the policies of Canadian, the employer.

I too believe that Mr. Milcik is not a member of management. Mr. Piché

stated that Mr. Milcik was the one who was overseeing the application

of Canadian's policies on the evening of the accident. Canadian's

official policy was not to de-ice Boeing 747s while their engines were

running. The reality, as we saw, was very different because members

of management at Canadian allowed de-icing tests to be conducted while

the engines were running. Moreover, on the evening of the accident,

the duty manager was Mr. Lopes who was physically present at the time.

The tests that took place at Mirabel were known to and permitted and

even authorized by the members of management named earlier. I do not

believe that Mr. Milcik had any say whatsoever in these tests. He had

to carry out orders.

As to whether Mr. Milcik was acting on behalf of the employer, it is

not clear that he was acting in this capacity because even if Mr.

Milcik volunteered for the assignment of "Iceman", he was not the one

who decided who would be given this assignment. It was management who

designated the "Iceman" for a specified period. This means that at

certain times, Mr. Milcik could be assigned additional duties and

responsibilities, whereas at other times, he resumed his normal duties

as Senior Lead. When Mr. Milcik serves as "Iceman", a job which he

himself describes as information coordinator for aircraft de-icing, he

has none of management's usual powers. Mr. Milcik cannot hire, fire,

discipline, give orders to or assign specific duties to an employee.

In short, Mr. Milcik does not act on behalf of the employer; he is

merely performing the duties assigned to him, just like any other

employee. Consequently, Mr. Milcik clearly is not Canadian's alter

ego. Moreover, in my view, no employee of Canadian can assume and doff

the function of manager at will.

In my opinion, Mr. Milcik is not the person who should be identified in

the direction issued to the employer; instead, it should be another

member of management. It is not up to me at this stage to determine

who in management was responsible, on the evening of the accident, for

overseeing the application of Canadian's policy on the de-icing of an

aircraft whose engines are running. In any case, I do not have to

identify a particular person in order for the direction to remain

legally valid. Although Canadian is not a natural person, it is an

artificial person and as such, is responsible for the actions of its

official representatives. Moreover, subsection 35(1) of the

Interpretation Act defines the term "person", which is found in the

above-cited definition of "employer", as follows:

"person", or any word or expression descriptive of a person,

includes a corporation; (emphasis added)

I will send a copy of this decision to Mr. Louis Dumont, counsel for

Canadian, so that he is aware of it and can take the measures that he

deems appropriate in the circumstances.

For all the above-mentioned reasons, I HEREBY VARY THE PRESENT

direction issued by safety officer Denis Caron on March 15, 1995 under

subsection 145(1) of the Code, to the employer, Canadian Airlines

International Ltd., by deleting from the said direction all references

to Mr. Mike Milcik, namely, the following references:

- Reference to Mr. Milcik in the first paragraph of the direction

which reads as follows:

"and for whom Mr. Mike Milcik works as Senior Lead of the

station attendants"

- Reference to Mr. Milcik in the last paragraph of the direction,

first line:

"Mr. Mike Milcik"

It is important to note here that my decision to delete Mr. Milcik's

name from the direction because he is not the employer's representative

does not relieve him of any liability in the instant case. I am merely

recognizing, based on the evidence presented to me, that the safety

officer erred in identifying Mr. Milcik as being the employer's

representative on the evening of the accident. Mr. Milcik is an

employee and his name should not have appeared in the direction issued

against the employer.

Decision rendered on December 6, 1995.

Serge Cadieux

Regional Safety Officer

APPENDIX A

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1)

On February 2, 1995, the undersigned safety officer conducted an

inquiry in the workplace operated by Canadian Airlines International

Ltd., an employer subject to Part II of the Canada Labour Code and

for whom Mr. Mike Milcik works as Senior Lead of the station

attendants, this employer being located at 12600, Airport A-1, local

2134, Montreal International Airport, Mirabel, Quebec, JN7 1C9, the

said location being sometimes called the De-icing Centre.

The said safety officer is of the opinion that the following provision

of Part II of the Canada Labour Code has been contravened:

Section 124. of Part II of the Canada Labour Code (Part II).

The employer, by letting the employees de-ice a B747-400 while

its engines were running, did not enforce its own written

directives by neglecting to provide the supervision necessary to

protect the safety and health of these same employees, with the

result that accidents occurred.

CONSEQUENTLY, you are HEREBY ORDERED, pursuant to subsection 145(1) of

Part II of the Canada Labour Code, to cease all contraventions

forthwith.

Issued at LaSalle, this 15th day of March 1995.

Denis Caron

Safety Officer

#1521

TO: Mr. Mike Milcik

Canadian Airlines International Ltd.

12600, Airport A-1, local 2134

Montreal International Airport

Mirabel, Quebec

J7N 1C9

SUMMARY OF THE DECISION OF THE REGIONAL SAFETY OFFICER

Decision no.: 95-018

Applicant: Mr. Mike Milcik

Interested party: The Attorney General of Canada

KEY WORDS: Management, employee, ICEMAN, de-icing while

engines running.

PROVISION: Code: 124, 145(1)

SUMMARY:

Following an accident that took the life of three employees of Canadian

Airlines International Ltd. who were de-icing an aircraft belonging to

Royal Air Maroc, a safety officer concluded that Canadian had

contravened section 124 of the Code. The safety officer issued a

direction to the employer through Mr. Mike Milcik who, on the evening

of the accident, was the ICEMAN (de-icing coordinator). The safety

officer identified Mr. Milcik by name in the direction because on the

evening of the accident, he was present at the scene of the accident

and because he was overseeing the application of Canadian's policies.

Upon review, the regional safety officer (RSO) determined that Mr.

Milcik was not a representative of the employer and that his name

should not therefore have appeared in the direction to the employer,

Canadian. The RSO VARIED the direction by deleting from it all

references to Mr. Milcik, but also recognized that this action did not

relieve Mr. Milcik of any liability in this case.