BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

J. W. Asprey

J. H. Clark

J. A. McGuire

A hearing in this matter was held in Montreal on September 16, 1976.

The Joint Statements of fact and issue are as follows:

The parties are agreed that the grievor did in fact refuse to carry out an assigned task. This would normally be grounds for discipline unless it can be shown that the task was unlawful, or endangered the health or safety of the grievor or others, or came within one of the other limited exceptions to the general rule.

In the instant case the grievor considered that the cleaning of the traction motor using the cleaning solution in question would be dangerous to his health. There is no doubt that the solution cannot safely be used unless certain precautions are taken. The Company has insisted that it be used in accordance with instructions and the grievor has himself used the solution in similar applications many times in the past. Certainly, for the job in question, precautions needed to be taken. While minor contact with the solvent is not particularly dangerous, inhalation of its fumes, where these are concentrated, is dangerous. Since the grievor would be working in a pit, and since there was not at the time an appropriate ventilation system for that type of work, he would have had to wear a mask.

The grievor had worn a mask for this sort of work before; on one occasion, he had been affected by fumes, although this would appear to have been attributable to his own improper handling of the equipment. In the instant case a mask was available, and there is nothing to suggest that it was not in proper condition. On all of the evidence, I conclude that the grievor could have done the job safely, using the proper equipment in the correct way, and that there was not in fact a significant risk to his health or safety.

Where an employee refuses to work on the ground of risk to health of safety, he does so at his peril in this sense, that he must justify his refusal. Here, as I have found, there was no substantial risk of that sort. The grievor cannot, then, complain where he is then sent home. Insofar as this grievance sets out a claim for lost wages for the day in question, therefore, it must fail. Where, on the other hand, an employee's refusal to perform a certain task on the ground of risk to health of safety is made bona fide, and with some, if not sufficient, justification, then I do not consider that any very substantial disciplinary measure is appropriate. In the instant case, in addition to his loss of earnings for the day, the grievor was assessed 30 demerits, which is a very substantial penalty in terms of the Brown system of discipline.

In my view, having regard to the circumstances, the assessment of demerit marks was excessive. The question of protection from the fumes of this solution was a serious one, and while the grievor may himself have been responsible for his earlier unfortunate experience with it, his concern at the time in question would still be a serious one. Thus, while the refusal to work must be recognized as insubordination, it should be borne in mind that insubordination in such cases does not involve the same undermining of managerial authority that is present in a "typical" insubordination situation. Thus, the imposition of a heavy penalty is not justified in circumstances such as these. In my view, while I agree that it was proper to send the grievor home, only a nominal assessment of demerit points was justified.

Accordingly, it is my award that the assessment of 30 demerits he set aside, and an assessment of 5 demerits be substituted therefor. The grievor is not entitled to compensation for loss of earnings. This award is made having regard to the circumstances of the particular case.

DATED at Toronto, this 27th day of September, 1976.

Arbitrator