Archived - Decision: 96-005 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. 96-005

Applicant: CANPAR Transport Limited

290 Central Parkway West, Suite 500

Mississauga, Ontario

Represented by Mr. Mark Hammond, Health & Safety

Coordinator

Respondent: George Rendell

Division Vice-President

Trucking division

Transportation Communications Union

London, Ontario

Mis en cause: Mariana Grinblat

Safety Officer #1712

Human Resources Development Canada

Toronto East District Office

Before: Bertrand Southière

Regional Safety Officer

Human Resources Development Canada

A hearing was held in Toronto on March 4, 1996. In attendance were:

Mark Hammond Health & safety co-ordinator, CANPAR

Roland Weicht Regional manager, CANPAR

George Rendell Division vice-president, Transportation- Communications Union

Mariana Grinblat Safety officer, Human Resources Development Canada

Background

Further to an inspection conducted at a workplace situated at 261

Queen's Quay East in Toronto and operated by CANPAR Transport Limited

(hereafter CANPAR), safety officer Mariana Grinblat issued, on August

2, 1995, a direction to CANPAR in Toronto, Ontario, requiring that

protective footwear be used in the above-referenced work place

(appendix 1). A review of the direction was requested by CANPAR on

August 10, 1995. A similar request was also presented by the

Transportation - Communications Union on September 4, 1995.

The safety officer issued the direction after obtaining statistical

information showing that, during the year 1994, there were seventy-two

(72) foot injuries at this location with lost work days ranging from

one to forty-eight for each event. A supporting document to her

contention was joined to a letter she sent to the Office of the

Regional Safety Officer on October 18, 1995. This is a one page

document which lists 56 names, 27 of which appear to be the names of

persons who have suffered foot injuries. The document appears to be

incomplete because it does not list 72 foot injuries as asserted by Ms.

Grinblat in her report. Furthermore, no explanations are given on how

to read the document, no comparisons are made with other similar

industries or with the industry as a whole.

Submission by the employer's representative

CANPAR's business is essentially small parcel delivery. The company has

a number of warehouses across the country and about 1500 employees, of

which roughly 1200 are unionized. In his submission, the employer

states that there are 135 employees working at the warehouse in

question. Within the warehouse itself, which is the site identified by

the safety officer in her direction, there were actually four foot

injuries in 1994. Of these four foot injuries, three were injuries to

the ankle which would not have been prevented by safety boots. The

fourth injury was to the top of the foot and could possibly have been

prevented by safety boots. Total time lost was 120 hours for all four

injuries; the employee who injured the top of his foot was away for two

days.

Submission by the employees' representative

- In the courier industry, very few other companies require their

employees to use protective footwear. Use is generally limited to

people who work in the vicinity of heavy equipment, such as fork

lift trucks.

- Protective footwear is expensive (about $125 to $150) and must be

paid for by each employee: this is an additional burden for

employees who have received no raise in the last 7 or 8 years.

- This union represents 9 trucking companies and it is familiar with

the transportation industry; if it is felt that the job requires

protective footwear, the union will agree with the requirement.

Discussion

The safety officer reached her conclusions and issued a direction based

on information which was incorrect because it did not apply to the

workplace she was inspecting: it was the yearly total for all

workplaces operated by the company. Furthermore, no information was

presented comparing the data obtained in this particular work place

versus other similar operations. In the course of one year, there was

one foot injury incurred by an employee and because of this one injury,

the safety officer would require all employees in this workplace to

purchase and to use protective footwear. The facts and statistics

which have been presented to me do not support the direction.

I note in passing that the direction makes reference to paragraph

125(j) of the Canada Labour Code Part II. This is incorrect; the

proper reference in this case would have been 125(v).

Decision

For the reasons outlined above, I HEREBY RESCIND the direction issued

by Safety Officer Mariana Grinblat to CANPAR Transport Limited at the

Queen's Quay Terminal in Toronto, Ontario, on the second day of August

1995.

Decision given on March 15, 1996.

Bertrand Southière

Regional Safety Officer

APPENDIX 1

IN THE MATTER OF THE CANADA LABOUR CODE

PART II (OCCUPATIONAL SAFETY AND HEALTH)

Direction to Employer under Subsection 145(1)

The undersigned Safety officer, did, on the 16 day of May, 1995

conducted an inspection at the workplace operated by Canpar, being an

employer subject to the Canada Labour Code, part II at 261 Queens Quay

E. in Toronto, and having conducted certain inspections at the said

workplace;

Found that a number of foot injuries are occurring as safety shoes

are not worn in the workplace;

1. 125(j) Canada Labour Code - provide every person granted

access to the work place by the employer with such safety

materials, equipment, devices and clothing as are prescribed

Refer to: The Canada Occupational safety & Health Regulation

12.6 Where there is a hazard of a foot injury or electric shock

through footwear in a workplace, protective footwear that meets

the standards set out in CSA Standard Z195-M1984, Protective

Footwear, the English version of which is dated March, 1984 and

the French version of which is dated December, 1984, shall be

used.

Hereby directs the said employer pursuant to subsection 145(1) of the

Canada Labour Code to terminate contravention of the said provisions

within 20 days of receipt of this direction and to ensure that future

hazardous occurrences are investigated, recorded and reported in the

manner prescribed.

Issued at Scarborough, Ontario, this 2nd of August 1995.

Mariana Grinblat

Labour Affairs Officer

To: Canpar

1290 Central Parkway West, Suite /500

Mississauga, Ontario L5C 4R9

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 96-005

Applicant: CANPAR

1290 Central Parkway West, Suite 500

Mississauga, Ontario

KEYWORDS:

Foot protection;

PROVISIONS:

Code: 125(j) and (v) Canada Occupational Safety and Health

Regulations: subsection 12.5 (1)

SUMMARY:

A safety officer issued a direction to CANPAR, in Toronto, to the

effect that protective footwear had to be used in the work place by all

employees who were at risk of injuring their feet. In support of her

direction, the safety officer made use of statistics which indicated

that there had been 72 foot injuries in this work place in 1994. In

his submission, the employer stated that these statistics were for the

whole company and that in this particular work place, there had been in

fact only four foot injuries, three of which were ankle injuries. The

direction was rescinded because of the lack of evidence.