Archived - Decision: 95-022 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH
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Review under section 146 of the Canada Labour Code,
Part II, of a direction issued by a safety officer
Decision no. 95-022
Applicant: Mr. Pierre Smarlack
Canadian Airlines International Ltd.
Represented by: Mr. Harold C. Lehrer
Interested party: The Attorney General of Canada
The Department of Justice Canada
Represented by: Mr. Yves Laberge 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 January 8 and 29, 1996 at 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). Because I was satisfied that the Attorney
General of Canada had the necessary interest to intervene in this case,
I granted him leave to intervene.
Agreement
It was agreed that evidence presented in the case of Mr. Mike Milcik
would not be used in this case. Mr. Laberge explained that he intended
to file documents in support of his arguments even if these documents
were filed in Mr. Milcik's case and there would be independent proof in
this case.
Objections
Mr. Lehrer objected to the entering in evidence in this case of almost
all the documents filed by Mr. Laberge. Both parties presented
arguments concerning each objection. Essentially, Mr. Lehrer's
objection related to the fact that the safety officer had received the
documents or had participated in the examination of witnesses with the
knowledge that he could not make public the information obtained from
these sources. Moreover, Mr. Lehrer pointed out to us that he could not
cross-examine the persons who had made conflicting statements at either
the coroner's inquest held in this case, or during Canadian's internal
investigation.
I authorized Mr. Laberge to file a number of the contested documents
since they all had a direct bearing on the circumstances that led the
safety officer to issue the revised direction, either because the
safety officer had had access to these documents during his
investigation or because he participated in the various investigations
in an official capacity under the Canada Labour Code, Part II. In all
cases, I informed Mr. Lehrer that I would be very circumspect in
admitting these documents and that I would give no more weight than was
necessary to the statements contained in these documents, bearing in
mind that we could not examine the witnesses. For example, a key
witness in Mr. Mike Milcik's case (see unreported decision no. 95-018),
Mr. Paul Ritchie of Canadian, did not appear before the regional safety
officer to testify because he knew that the Code did not authorize the
regional safety officer to subpoena him.
There was also this whole question of the scope of the regional safety
officer's investigation, which was supposed to be an inquiry conducted
in a summary way, in accordance with subsection 146(3) of the Code, but
which in the end assumed the proportions of a judicial inquiry. In
these circumstances, the regional safety officer had an obligation to
strike a balance between these two notions while ensuring that the
review process was as equitable as possible without, however, leaning
too far in either direction.
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 when three employees of Canadian and their
fellow workers Alain Giroux and Pierre Smarlack were de-icing1 a Boeing
747-400 aircraft belonging to the national airline Royal Air Maroc
(hereinafter RAM). The accident happened when the RAM aircraft began to
move while de-icing was still in progress. As a result, the aircraft's
rear stabilizers struck the hydraulic booms that were supporting the
buckets, 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 investigation
On January 21, 1995, Mr. Denis Caron, a safety officer, visited Mirabel
International Airport to conduct an investigation pursuant to the Code.
The safety officer reported that "on the evening of the accident, Alain
Giroux, a driver and station attendant for Canadian, was driving the
truck identified as truck #2, while Pierre Smarlack was driving the
other truck (#1) and was performing the duties of Lead Snowman for
Canadian".
The safety officer explained that "the vast majority of communications
are on different radio frequencies", namely:
- frequency 121.8 reserved for Ground Control;
- frequency 122.4 reserved for Apron Control;
- frequency 130.775 reserved for communications with Canadian;
- walkie-talkie radio communication (U.H.F.) to talk to Canadian's
operations;
- Hard-Wired communication between the driver of the truck and the
bucket operator who is in the bucket.
The safety officer pointed out that employees Giroux and Smarlack, and
the three deceased employees, were all Station Attendants. In Mr.
Smarlack's case, the safety officer reported that his duties, on the
evening of the accident, were Vehicle Driver and Lead Snowman.
According to the safety officer, "the job (of Mr. Smarlack) consists
generally in driving the truck, maintaining communications with the
Iceman2, with the person in the bucket of his truck, with truck #2,
with the crew of the aircraft and following the instructions of the
Bucket Operator".
__________
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 Iceman means "de-icing co-ordinator". On the evening of the
accident, Mr Mike Milcik, an employee of Canadian, had been designated
Iceman for the de-icing of the RAM Boeing 747 aircraft. See unreported
decision No. 95-018 for further details.
The three deceased employees, one of whom was in training, were working
as Bucket Operators. According to the safety officer, "the job of
Bucket Operator consists in:
- maintaining communication with the driver of the truck by means of
the hard-wired system;
- using hand signals, giving the driver of the truck the
instructions necessary for his de-icing work".
The safety officer, in the course of his investigation, took the
following initiatives:
- he visited the de-icing centre three times;
- he attended the questioning of Mr. Smarlack by Canadian on January
25, 1995;
- he personally questioned Mr. Smarlack in the presence of various
persons on February 2, 1995;
- he gathered various documents, including:
- Canadian's de-icing procedure;
- the transcript of the questioning of Pierre Smarlack by
Canadian;
- the transcript of the questioning of Alain Giroux by Canadian;
and
- various statements that he drafted and that were signed by
Messrs. Giroux and Smarlack.
According to the safety officer, paragraph B(3) of section 3-7-9 of
Canadian's De-icing Procedures provides that the general de-icing rule
is that the de-icing of aircraft is done with the engines not running.
However, relying on Canadian's De-icing Procedures (paragraph 3-7-13),
the safety officer noted that, by way of exception to the general rule,
"the only two types of aircraft that can be de-iced while the engines
are running are Canadian's Boeing 737-200s and Airbus A320-200s".
Based on the foregoing, the safety officer made the following
observations concerning Mr. Pierre Smarlack:
- that he decided on his own initiative to ask the pilot of Royal
Air Maroc's B-747-400 to leave the engines of his aircraft running
during de-icing;
- that he stated that he had training on paper only;
- that he stated that he was supervising the bucket from inside the
truck, contrary to the De-icing Procedure set down by Canadian;
- that authorizing the pilot to leave the engines running interfered
with communication between the driver of the truck and the bucket
operator, and that in this case, the company's procedure requires
the use of a Guideman;
- that he was aware that his employer had not provided for any
procedures for de-icing B-747s with their engines running.
The direction
In conclusion, the safety officer was of the opinion that Mr. Smarlack
had contravened two provisions of the Code: paragraphs 126(1)(c) and
126(1)(d), both dealing with the duties of employees. He therefore
issued a direction to Mr. Smarlack to this effect. The direction
(APPENDIX-A) was issued by the safety officer on March 15, 1995,
pursuant to section 145(1) of the Code.
The safety officer explained in his report the reasons why he had
reached these conclusions:
"After noting all these facts and for all these reasons, I am of
the opinion that Pierre Smarlack contravened the Canada Labour
Code, more particularly section 126(1) of the said Code which
reads as follows:
126. (1) (safety and health) While at work, every employee shall
(c) take all reasonable and necessary precautions to ensure
the safety and health of the employee, the other employees
and any person likely to be affected by the employee's acts
or omissions;
In fact, when Pierre Smarlack decided, in the circumstances, to de-
ice the Royal Air Maroc B-747-400 aircraft while the engines were
running and to tell the pilot that the de-icing would be done with
the engines running, he did not take all necessary and reasonable
precautions to ensure his own safety and health and the safety and
health of the other employees or of any person.
I am also of the opinion that Pierre Smarlack contravened section
126(1)(d) of the Canada Labour Code which reads as follows:
126. (1) (safety and health) While at work, every employee
shall
(...)
(d) comply with all instructions from the employer
concerning the safety and health of employees;
In fact, Pierre Smarlack's decision to authorize de-icing of the
Royal Air Maroc Boeing 747-400 aircraft while its engines were
running, when his employer's procedures stated that only Boeing 737-
200 and Airbus A320-200 aircraft could be de-iced with the engines
running did not comply with the instructions from his employer
concerning the safety and health of employees".
Submission on behalf of the employee
Mr. Lehrer's detailed arguments were entered in the record. Mr. Lehrer
made numerous submissions during the hearing of this case. The relevant
submissions are as follows.
Mr. Lehrer was of the opinion that the safety officer erred in his
reasoning when he concluded that de-icing a 747 with its engines
running was not permitted by the employer, and that Mr. Smarlack was
the one who made the decision to de-ice the Royal Air Marco 747 with
its engines running.
First, noted Mr. Lehrer, the safety officer relied on paragraph 3-7-13
of the document filed as Exhibit D-3S, Canadian's De-icing Procedures,
in concluding that the company limited de-icing while the engines were
running to two types of aircraft: the Boeing 737-200 and the Airbus
A320-200. This was a mistake on the safety officer's part because these
aircraft did not land at Mirabel, whereas other similar types of
aircraft did and they were de-iced at Mirabel with their engines
running. The safety officer should therefore have concluded that
Canadian's policy of de-icing aircraft with their engines running was
not limited solely to these two types of aircraft, whether or not they
were mentioned in the procedure.
Second, Mr. Lehrer pointed out to us that the safety officer also erred
in concluding that Mr. Smarlack was the one who decided to de-ice the
747 with its engines running because it was the pilot who made the
final decision. There was a certain chain of command in relations
between the ground crew and the crew of the aircraft that did not
permit a member of the ground crew to give the pilot an order. Without
exception, the pilot was always in charge of his aircraft and the pilot
always had the final say.
Mr. Lehrer drew our attention to the circular published by Transport
Canada (Aviation), dated August 22, 1994, entitled AIR CARRIER ADVISORY
CIRCULAR, that "is intended to encourage air carriers to allow their
aircraft to be de-iced/anti-iced with the main engines running, where
technically feasible". How could a government agency encourage de-icing
with the engines running and at the same time a safety officer find
that there had been a contravention of the Code because the employer
did not permit de-icing? According to Mr. Lehrer, Mr. Smarlack and Mr.
Milcik established that it was technically feasible to perform de-icing
with the engines running, Mr. Smarlack having done so three to six3
times previously.
The employer's testimony before the coroner, i.e., that de-icing of
747s with their engines running was not permitted by Canadian, was
completely false. The faxes filed by Mr. Lehrer, clearly showing that
the employer was testing the de-icing of a 747 with its engines
running, was conclusive proof to the contrary. The employer also
recognized in this internal correspondence that this was technically
feasible.
Mr. Lehrer admitted to us that he had a great deal of difficulty
understanding the logic of the safety officer who stated that it was
dangerous to perform de-icing with the engines running and who at the
same time rescinded a direction to this effect that he had issued to
the employer previously. If there was a danger, why allow the employer
to do it? Logically speaking, if a Boeing 737-220 or an Airbus A320-
200 aircraft could be de-iced with the engines running, then so too
could a Boeing 747-400 because there was very little difference between
these types of aircraft.
Finally, Mr. Lehrer strongly objected to the safety officer's comment
in his direction when he concluded, in connection with Mr. Smarlack's
decision, that leaving the engines running caused the accident. There
was no connection between the fact that the engines were running and
the accident. The pilot alone was responsible for the accident because
he put the aircraft in motion without confirming that de-icing had been
completed and without confirming that the aircraft had been cleared for
departure.
__________
3 During Mr. Smarklack's testimony and in his written statement to the
safety officer, the number of times reported is six to seven.
Submission of the Attorney General of Canada
The detailed submission of the Attorney General of Canada was entered
in the record. Mr. Laberge explained that, on the strength of the
documents filed, the employer had established procedures that permitted
de-icing, with the engines running, of certain limited types of
aircraft (paragraph 3-7-13, Canadian's De-icing Procedures, Exhibit D-
3S). However, there was a more general provision (page 19, paragraph 3
of the same above-mentioned procedures) which provided that normally,
de-icing should be done with the engines not running, except that,
under certain conditions, de-icing could be done with the engines
running. The safety officer relied on the employer's procedures when he
conducted his investigation.
The safety officer questioned Mr. Smarlack who made the statement to
him that he told the pilot to leave the engines running. This statement
by Mr. Smarlack was corroborated by a number of witnesses such as Ms.
Beaulieu, Ms. Campbell and even Mr. Milcik. Moreover, Mr. Laberge did
not accept Mr. Lehrer's argument that the pilot had the final say in
all matters.
With regard to the Transport Canada circular, Mr. Laberge explained
that it was intended first and foremost as an invitation to the
airlines to examine the possibility of de-icing aircraft with their
engines running, but not at any cost. The employer must establish the
procedures governing this type of operation. None of the procedures
filed stated that the employer authorized the de-icing of 747s with
their engines running. To date, all that the procedures said was that
de-icing with the engines running was not authorized in the case of
747s, but only in the case of 737s and 320s.
With regard to Mr. Smarlack's training to de-ice 747s with their
engines running, Mr. Laberge stated that during his questioning, Mr.
Smarlack replied that he had not had a training session on this type of
de-icing. Mr. Laberge did not accept the so-called training that Mr.
Smarlack had apparently received from Mr. Massie because even if Mr.
Massie was highly competent, he was not a trainer and, furthermore, Mr.
Smarlack was very evasive concerning the content of the training and of
the manuals, and one could not therefore tell what kind of training he
apparently received. In fact, there was a clear contradiction between
Mr. Smarlack's statement that he received training in de-icing 747s
with their engines running and his statement of February 2, 1995 that
he received no training.
According to Mr. Laberge, the facts showed that Mr. Smarlack had the
necessary authority to ask the pilot to shut down the engines of his
aircraft, a precaution which he did not take in this case. Mr. Smarlack
held a permit that authorized his movement about the airport apron, a
special traffic area that required security measures, especially when
working near a 747, whose four engines generated a lot of noise. There
was then a communication problem that was not taken into account.
Decision
The direction issued to Mr. Smarlack refers to a contravention of
paragraphs 126(1)(c) and (d) respectively of the Code. The safety
officer explained, in his investigation report, the reasons why he
identified the two contraventions, and this enabled the parties in
question to argue their respective cases before me.
The first question that I must decide in this case is whether Canadian
authorized de-icing with the engines running or if only certain members
of management had decided to conduct preliminary tests. In my opinion,
Canadian's policy in this regard was clear: de-icing with the engines
running was not performed on aircraft other than Boeing 737-200s and
Airbus A320-200s, regardless of whether these aircraft landed at
Mirabel. More specifically, the Boeing 747-400 was an aircraft on which
the employer was preparing to conduct tests but which presented special
problems. Be that as it may, it was not an aircraft the de-icing of
which was permitted with its engines running and for which a special
procedure had been provided. There had been no official authorization
of the de-icing of Boeing 747-400s with their engines running, which
leads me to believe that if tests were being conducted on this type of
aircraft, they were still at the preliminary stage. This situation
caused a great deal of confusion in de-icing operations and in the
assigning of responsibilities to the various persons involved in these
operations.
Mr. Smarlack told us that he performed de-icing on different types of
aircraft, including Boeing 747-400s, six or seven times. In my opinion,
Mr. Smarlack likely de-iced wide body aircraft similar to Boeing 747-
400s with their engines running. He may even have participated in tests
on Boeing 747-400s while their engines were running, although it was
never shown to me, with supporting evidence, that such was the case. I
note that during the questioning conducted by the safety officer, Mr.
Smarlack stated, in answer to question 15, that he de-iced 747s with
their engines running six or seven times. I also note that in reply to
question 23(A) that the safety officer asked him, i.e, "Under the work
procedures, is de-icing 747 aircraft while their engines are running
allowed?", Mr. Smarlack avoided directly answering the question as
asked. Instead, he replied, "Since I received training in de-icing with
the engines running, since then we've being doing it regardless of
whether it's a 747 or not." This statement seems to indicate that Mr.
Smarlack had in fact received training in de-icing Boeing 747-400s with
their engines running. Had he left it at that, I would be inclined to
believe Mr. Smarlack and to ignore the ambiguities in the questions and
answers even though his statements suggest that this type of operation
was conducted regularly at the de-icing centre, a situation which, to
my knowledge, was never officially acknowledged by the company.
However, if there is some ambiguity in all these statements, there is
none when, during his questioning of Mr. Smarlack, the safety officer
clearly asked him question 23(c), i.e., whether he had received
training in de-icing 747s while their engines were running. Mr.
Smarlack replied without hesitation "no", contrary to what he implied
at the hearing in this case. No matter how one interprets this question
and Mr. Smarlack's answer, I am not persuaded that he had received any
training in de-icing 747s with their engines running. The question is
very straightforward and unambiguous and does not require a complex
answer.
In short, what I conclude in this case is that Mr. Smarlack never
received any formal training in de-icing 747s while their engines were
running and he therefore lacked the necessary competence to perform
this operation. The "on-the-job" training that Mr. Smarlack claims to
have received from Mr. Massie cannot be recognized as being training
provided by the company because although Mr. Massie is very competent
at doing his job, he was not recognized as being a trainer.
On the evening of the accident, Mr. Smarlack served as Lead Snowman, a
job which I would describe as the on-site person in charge of the de-
icing crew. In this capacity, Mr. Smarlack was in direct contact with
the crew of the aircraft, the de-icing crew and the de-icing co-
ordinator (Iceman). His job consisted, among other things, in co-
ordinating on site the de-icing of both sides of the aircraft
simultaneously, effectively and safely. It follows from this
description that Mr. Smarlack had, in my opinion, the necessary
authority to ask the pilot to shut down the aircraft's engines, since
this procedure was the company's official policy. Moreover, Mr.
Smarlack himself established that he had this authority because he
asked the pilot, on his initial contact with him and other than to
determine what type of de-icing he wanted, to "shut down his engines".
The pilot wanted to comply, but informed Mr. Smarlack that his A.P.U.4
was shut down. According to Mr. Smarlack's duly signed statement of
February 2, 1995, he said, "I then told him to keep his engines
running; he confirmed to me that he would do that."
_____________
4 A.P.U. means Auxiliary Power Unit. The A.P.U. is the auxiliary engine
that must supply the power to keep the aircraft's main functions
operating while the main engines are shut down.
I must elaborate on this last point. Mr. Lehrer interprets Mr.
Smarlack's words as a suggestion or a question put to the pilot of the
aircraft, to which the pilot apparently replied yes and that in doing
so, it was the pilot who was authorizing de-icing with the engines
running. I do not accept this interpretation. It is true that the pilot
is responsible at all times for his aircraft and it goes without saying
that in leaving the de-icing centre before being informed that de-icing
was completed, the pilot bears a very heavy responsibility for the
consequences. It is also true that the pilot must assume some of the
responsibility by not objecting to the de-icing of his aircraft with
its engines running. However, that is not the matter at issue here.
When a pilot arrives at the de-icing centre, he entrusts to competent
employees responsibility for performing the various maintenance
operations, in this case de-icing, and does not have to question the
competence of these people. The pilot's responsibility is not at issue
here; what is at issue is Mr. Smarlack's responsibility. Mr. Smarlack
was not competent to ask the pilot to leave his engines running because
he had not received the training necessary to do so. Mr. Smarlack also
was not authorized to do so because it was contrary to Canadian's
policy to de-ice 747-400s while their engines were running. Moreover,
being the on-site person in charge of the de-icing operation, Mr.
Smarlack should never have allowed an employee in training to
participate in an operation for which there were no clearly defined
procedures.
I do not have to decide here who is responsible for the accident, but I
must say that, in my opinion, the performing of the de-icing while the
engines were running is not the cause per se of the accident. Moreover,
as Mr. Lehrer pointed out, Transport Canada was recommending that de-
icing be done with the engines running where technically feasible.
However, this operation should have been done only under very strict
supervision and using very strict safety procedures. But these
procedures had not yet been developed and, for all practical purposes,
there were no precautions specifically adapted to de-icing a Boeing
747-400 with its engines running. Mr. Smarlack did not therefore take
special safety precautions to de-ice a Boeing 747-400 with its engines
running because, beside the fact that he was not competent to decide to
take such precautions, there were no precautions.
With regard to the issuing of the direction to the employer under
paragraph 145(2)(a) of the Code, I share, in part, Mr. Lehrer's opinion
on this matter. When the safety officer detects a condition that
constitutes a danger, the Code requires him, under paragraph 145(2)(a),
to
(a) notify the employer of the danger and issue directions in
writing to the employer directing the employer immediately or within
such period of time as the officer specifies
(i) to take measures for guarding the source of danger, or
(ii) to protect any person from the danger;
This is what the safety officer did during his investigation. In my
opinion, the safety officer could have followed up his action in this
case by ensuring that the employer complied with the directions issued.
Naturally, the Code contains other provisions related to this
responsibility of the safety officer, but it does not allow him to
alter the content of the directions. I find it regrettable that the
safety officer issued a direction to Canadian and that following
certain contacts with representatives of the company, he rescinded for
all practical purposes the direction, an action which is the
responsibility of the regional safety officer under section 146 of the
Code. The safety officer had directed Canadian to do the following:
to adopt a safe work procedure whereby visual contact is maintained
with the pilot of the aircraft in order to confirm the start and
completion of de-icing work on the aircraft."
Later, the safety officer notified Canadian of the following:
"Given your full compliance with these directions, the
prohibition issued to you to stop de-icing any type of aircraft
while its engines are running is no longer in force."
One of the problems with this interference by the safety officer in the
regional safety officer's role is that it absolves, or at least appears
to absolve, the employer of its initial responsibility as regards the
circumstances of the accident, but maintains the employees'
responsibility without allowing them to exercise their rights and
express their viewpoint. In acting as he did, the safety officer left
only the employees to face possible charges, with the possibility of
multiple prosecutions, while taking the employer's side without any
further formalities. I do not agree with this action and I believe that
Parliament never intended that justice be dispensed so summarily.
When the accident occurred, the safety officer was informed that the
Canadian Transportation Accident Investigation and Safety Board
(hereinafter the TSB) would investigate in this case. We know that the
TSB has exclusive jurisdiction to investigate an aviation occurrence
in order to make findings as to their causes and contributing factors.
The safety officer has all the necessary authority to investigate in
this situation where employees under federal jurisdiction are involved
in the accident. However, I stated in Aéroports de Montréal,
unreported decision number 95-012, that where the TSB investigates,
[translation] "the safety officer's responsibility in these cases is
to determine whether the Code was contravened, and not to assign
responsibility for the accident". Consequently, the references that
the safety officer made in the direction, namely, the words "with the
result that accidents occurred", will be deleted from the direction.
The immediate effect of this amendment is to ensure that if Mr.
Smarlack is found to have contravened the Canada Labour Code, this
finding will not have the effect of establishing, in respect of him, a
direct causal link with the accident. This is the responsibility of
the TSB.
For all the above-described reasons, I am of the opinion that Mr.
Smarlack contravened paragraphs 126(1)(c) and (d) of the Canada Labour
Code, Part II. Bearing in mind the comment that I made earlier
concerning the assigning of responsibility for the accident, I HEREBY
VARY the direction issued on March 15, 1995, pursuant to subsection
145(1) of the Canada Labour Code, Part II, by safety officer Denis
Carron to Mr. Pierre Smarlack of Canadian Airlines International Ltd.,
by deleting from the direction the reference, under paragraph 126(1)(d)
of the Code, to the expression with the result that accidents
occurred" and by deleting from the direction, under paragraph
126(1)(c) of the Code, the reference to the expression "with the
result that work accidents occurred".
Decision rendered on February 27, 1996
Serge Cadieux
Regional Safety Officer
APPENDIX A
IN THE MATTER OF THE CANADA LABOUR CODE
PART II - OCCUPATIONAL SAFETY AND HEALTH
DIRECTION TO THE EMPLOYEE UNDER SECTION 145(1)
On January 21, 1995, the undersigned safety officer conducted an
investigation in the workplace operated by Canadian Airlines
International Limited, an employer subject to Part II of the Canada
Labour Code, and for whom Mr. Pierre Smarlack works as a station
attendant driver, which employer is located at 12600, Terminal A-1,
local 2134, Montreal International Airport, Mirabel, Quebec, J7N 1C9,
the said place being sometimes called the De-icing Centre.
The said safety officer is of the opinion that following provisions of
Part II of the Canada Labour Code have been contravened:
Paragraph 126.(1)(d) of Part II of the Canada Labour Code (Part II)
The employee did not follow the employer's instructions concerning
de-icing, by deciding to de-ice a B 747-400 with its engines
running, with the result that accidents occurred.
Paragraph 126.(1)(c) of Part II of the Canada Labour Code (Part II)
The employee, by not following the instructions of his employer not
to de-ice a B 747-400 with its engines running, did not take all
reasonable and necessary precautions to ensure his own safety and
health and the safety and health of the other employees, with the
result that work accidents occurred.
CONSEQUENTLY, you are HEREBY ORDERED, under section 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. Pierre Smarlack
Station Attendant Driver
163, Domaine Cloutier
St-Colomban, Quebec
J0R 1N0
SUMMARY OF THE DECISION OF THE REGIONAL SAFETY OFFICER
Decision no.: 95-022
Applicant: Mr. Pierre Smarlack, Lead Snowman
Interested party: The Attorney General of Canada
KEY WORDS: De-icing, Boeing 747-400, training, Lead Snowman,
A.P.U., TSB (Canadian Transportation Accident
Investigation and Safety Board)
PROVISIONS:
Code: 126(1)(c), 126(1)(d), 145(1)
SUMMARY:
Following a tragic accident in which three employees of Canadian
engaged in de-icing an aircraft belonging to the airline Royal Air
Maroc died, a safety officer issued a direction to the employee who was
in charge of the on-site de-icing operation. The Regional Safety
Officer (RSO) was essentially in agreement with the direction issued to
the employee. However, the RSO VARIED the direction by deleting from it the references to the words "with the result that accidents occurred".
The RSO determined that the safety officer's role, where an aviation occurrence is investigated by the TSB, is to determine whether the Code was contravened. The determination of the cause of the accident is, in these cases, the responsibility of the TSB.
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