Nova Scotia (Environment and Labour) v. Nova Scotia (Occupational Health and Safety Review Panel)

Nova Scotia (Environment and Labour) v. Nova Scotia (Occupational Health and Safety Review Panel) Court Court of Appeal Date 2001-11-15 Citation 2001 NSCA 162 Docket CA 172283 Judge/Registrar/Adjudicator Oland, Linda L. (Honourable Justice); Glube, Constance R. (Honourable Chief Justice) (CA); Flinn, Edward J. (Honourable Justice) Document Type Decision Relations Library Sheet - Nova Scotia (Environment and Labour) v. Nova Scotia (Occupational Health and Safety Review Panel) - 2001 NSCA 162 - 2001-11-15 - Library Sheet Decision Content Date: 20011115 Docket No.: CA 172263 NOVA SCOTIA COURT OF APPEAL Cite as: Nova Scotia (Environment and Labour) v. Nova Scotia (Occupational Health and Safety Appeal Panel), 2001 NSCA 162 Glube, C.J.N.S., Flinn and Oland, JJ.A. BETWEEN: DIRECTOR, OCCUPATIONAL HEALTH AND SAFETY DIVISION representing the Department of Environment and Labour, representing Her Majesty the Queen in Right of the Province Appellant - and - THE OCCUPATIONAL HEALTH AND SAFETY APPEAL PANEL designated pursuant to Section 68 of the Occupational Health and Safety Act to hear the matter of an appeal noted as Case No. 2000-0030 and THE ANNAPOLIS VALLEY REGIONAL SCHOOL BOARD Respondents - and - NOVA SCOTIA TEACHERS UNION and LOIS GILLIS - and - CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3876__________________________________________________________________ REASONS FOR JUDGMENT __________________________________________________________________ Counsel: Sarah M. Bradfield for the appellant, Director John T. Shanks and Patrick J. Saulnier for the respondent, Annapolis Valley Regional School Board Terry L. Roane, Q.C. for the Nova Scotia Teachers Union and Lois Gillis Bettina Quistgaard for CUPE, Local 3876 Appeal Heard: September 28, 2001 Judgment Delivered: November 15, 2001 Revised Decision: The text of the original judgement has been corrected incorporating the text of the erratum (released November 15, 2001). THE COURT: Appeal dismissed per reason for judgment of Flinn, J.A.; Glube, C.J.N.S. and Oland, J.A. concurring. FLINN, J.A.: Overview [1] An employee has the right, under s. 43(1) of the Occupational Health and Safety Act, S.N.S. 1996, c. 7 (the Act) to refuse to work where the employee has reasonable grounds for believing that it is likely to endanger the employee’s health or safety. The employee has that right until: (a) The employer has taken remedial action to the satisfaction of the employee; (b) The joint occupational health and safety committee (composed of representatives of the employer and the employee), if one exists, has investigated the matter and unanimously advised the employee to return to work; or (c) The Director of the Occupational Health and Safety Division of the Department of Labour, or an officer of that Division, has investigated the matter and advised the employee to return to work. [2] Section 43(2) of the Act places certain reporting obligations on the employee who exercises the right to refuse to work under s. 43(1). I will refer to both of these sections in more detail later in these reasons. [3] The party Lois Gillis (the employee) is a teacher at the Windsor Regional High School (the school). Her employer is the respondent Annapolis Valley Regional School Board (the School Board). [4] In 1999 the employee exercised her right to refuse to work because of health problems which she attributed to fumes at the school. The employer considers that it has remedied the health and safety issue, however it has not been done to the satisfaction of the employee. The Joint Occupational Health and Safety Committee (JOHS Committee) of the school has unanimously agreed that the employee should not return to work. The employee was, as of the date when this appeal was heard, still off work and receiving full pay and benefits. The Director of the Occupational Health and Safety Division of the Department of Labour (the Director and the appellant) refused to investigate the employee’s work refusal claiming that he had no authority to conduct such an investigation. [5] The employer appealed the Director’s decision to an appeal panel set up under the Act. The appeal panel decided that the Director not only had the authority but had the obligation to investigate the employee’s work refusal, and the appeal panel issued an order accordingly. [6] The Director appeals the decision and order of the appeal panel. [7] It would be helpful to give a brief overview of the foundation upon which the Act was passed so that the facts and issues which give rise to this appeal may be considered in perspective. [8] The foundation of the Act is termed the “Internal Responsibility System.” This means that the primary responsibility for occupational health and safety is shared by everyone connected with the workplace. However, that does not mean that the Occupational Health and Safety Division of the Department of Labour (the Division) of which the Director is the head, does not have a role to play. The Division promotes the importance of occupational health and safety, provides support to the people at the workplace as they carry out their occupational health and safety responsibilities, and steps in when these responsibilities are not being carried out. [9] All of this is set out in detail in s. 2 of the Act which provides as follows: Internal Responsibility System 2 The foundation of this Act is the Internal Responsibility System which (a) is based on the principle that (i) employers, contractors, constructors, employees and self-employed persons at a workplace, and (ii) the owner of a workplace, a supplier of goods or provider of an occupational health or safety service to a workplace or an architect or professional engineer, all of whom can affect the health and safety of persons at the workplace, share the responsibility for the health and safety of persons at the workplace; (b) assumes that the primary responsibility for creating and maintaining a safe and healthy workplace should be that of each of these parties, to the extent of each party's authority and ability to do so; (c) includes a framework for participation, transfer of information and refusal of unsafe work, all of which are necessary for the parties to carry out their responsibilities pursuant to this Act and the regulations; and (d) is supplemented by the role of the Occupational Health and Safety Division of the Department of Labour, which is not to assume responsibility for creating and maintaining safe and healthy workplaces, but to establish and clarify the responsibilities of the parties under the law, to support them in carrying out their responsibilities and to intervene appropriately when those responsibilities are not carried out. (Emphasis Added) [10] The ultimate question in this appeal is whether the appeal panel erred in law or jurisdiction, in deciding, in the circumstances of this case, that it was the obligation of the Division to intervene and to investigate the employee’s work refusal. [11] I will now review, in more detail, the background facts which gives rise to this appeal. Summary of facts [12] Lois Gillis is a teacher employed at the school by the School Board. [13] In late 1999, Ms. Gillis began experiencing health problems which she attributed to her workplace, specifically to noxious fumes in the school. As a result, she left work several times in the month of November, 1999 and advised the JOHS Committee of the School Board, as well as the Division, of her concerns. [14] On December l5, 1999 Ms. Gillis left the school, claiming the right to refuse to work under s. 43 of the Act. On that same date she reported to her supervisor (the Principal of the school) her work refusal and the reasons for it. [15] On December 22, 1999 the JOHS Committee of the school met and discussed the concerns of Ms. Gillis. It agreed that Ms. Gillis was affected by fumes in areas of the school, that she could not safely return to work at the school, and that there was no location in the school appropriate for her health and safety. The JOHS Committee unanimously affirmed this position at a subsequent meeting held in February 2000. [16] Ms. Gillis made contact with the Division on several occasions both before and after she exercised her right to refuse to work. She telephoned Ms. Gray, an officer of the Division, on November 25th and November 29th, 1999 to discuss her concerns regarding safety at the school, her options, her rights and her responsibilities. In addition she telephoned Ms. Gray on December 22, 1999, February 18, 2000 and February 22, 2000 to report her actions, to discuss her work refusal, and to ask questions concerning the Act. She and Ms. Gray discussed the role of the Division as it pertained to her particular circumstance. It was noted by Ms. Gray that Ms. Gillis’ actions were in compliance with the Act. [17] In addition the JOHS Committee, a representative of Ms. Gillis’ union and the Director of Human Resources for the School Board contacted the Division about Ms. Gillis’ refusal. The Division took no action because its position was that Ms. Gillis had never requested an investigation; and, in any event, such a request would be contingent on Ms. Gillis having been advised to return to work by the JOHS Committee. [18] On February 28, 2000 the Director of Human Resources for the School Board wrote to Ms. Gillis. He advised that it was his understanding, from conversations with the Division, that as long as the JOHS Committee unanimously supports Ms. Gillis in not returning to work then the Division will not inspect the site to determine whether it is safe. He went on to explain what efforts had been made, and would be made, to alleviate her concerns. In the meantime he agreed, on a without prejudice basis, that Ms. Gillis would continue to be paid her salary. [19] In September 2000 the Director of the Division wrote to the Director of Human Resources for the School Board in response to the School Board’s request for intervention by the Division. The Director acknowledged, among other things: (a) That the School Board had addressed all issues related to health and safety that it was able to identify; (b) That the School Board believed at that time that the work location was suitable for the employee to return to work; (c) That notwithstanding this, the JOHS Committee of the school had not unanimously advised the employee to return to work, but instead had unanimously advised her not to return to work; and (d) That the employer was seeking a resolution to the matter. [20] In this letter, the Director said the following: The Occupational Health and Safety Act does not contain provisions which creates an ability for an employer to refer a work refusal to an officer for investigation. Moving a work refusal through the process is at the discretion of the employee. The option available for the employer to bring the matter to the attention of the Department would be to cease paying salary and benefits. When this occurs, I would expect that the matter would come forward to the Department through the employee but there could also be some action under the collective agreement. [21] At this point, it would helpful to set out in detail the provisions of s. 43(1) and (2) of the Act which deal with: (a) the rights of an employee to refuse to work where there are reasonable grounds for believing that such employment is likely to endanger the employee’s health or safety, and (b) the reporting responsibilities of an employee who has exercised the right to refuse to work. [22] Sections 43(1) and (2) provide as follows: Right to refuse work and consequences of refusal 43 (1) Any employee may refuse to do any act at the employee's place of employment where the employee has reasonable grounds for believing that the act is likely to endanger the employee's health or safety or the health or safety of any other person until (a) the employer has taken remedial action to the satisfaction of the employee; (b) the committee, if any, has investigated the matter and unanimously advised the employee to return to work; or (c) an officer has investigated the matter and has advised the employee to return to work. (2) Where an employee exercises the employee's right to refuse to work pursuant to subsection (1), the employee shall (a) immediately report it to a supervisor; (b) where the matter is not remedied to the employee's satisfaction, report it to the committee or the representative, if any; and (c) where the matter is not remedied to the employee's satisfaction after the employee has reported pursuant to clauses (a) and (b), report it to the Division. [23] The interpretation of these sections is at issue in this case, specifically: 1. Whether the Division is required to respond to a request from the employer to investigate a workplace health and safety issue; 2. Whether the JOHS committee of the school must unanimously advise the employee to return to work before the employee can report the work refusal to the Division; and 3. Whether the employee made a “report” to the Division in this case. [24] The Director of Human Resources for the School Board responded to the Director by letter dated September 14, 2000 in which he said: In this case, the employer and the employee have attempted to resolve the matter and the steps outlined in 43(2)(a) and (b) were followed. The parties have followed the steps set out in subsection 43(1)(a) and (b). However, the employer believes that the remedial action required in 43(1) (a) has made the worksite safe, but it is still not to the satisfaction of the employee. The JOHS Committee has not, and likely will never, unanimously advise the employee to return to work in accordance with 43(1)(b). There is an impasse that I believe can only be resolved through an investigation and judgement by an Occupational Health and Safety Officer, to determine if this worksite is safe or not. The Act, subsection 42(1)(c) (sic) [43(1)(c)], provides for an officer to investigate the matter and the officer has the authority, by legislation and policy to advise the employee to return to work. I understand that an officer can become involved in a work refusal investigation as long as the parties have followed the steps in 43(2)(a) and (b). Subsection 43(2)(c) is added protection for the employee and provides an opportunity for the employee to report to the Division. The Act and the policy are silent with respect to the ability of the employer to report to, and request from the Division, an officer to investigate to determine whether or not a worksite is safe. It is therefore at the discretion of the management of the Division to decide/judge whether to provide the services of an officer for such an investigation. I am hereby again requesting that you provide an officer to investigate this worksite to determine whether it is safe or not. The consequences for the employer of you not providing an officer for the investigation have far reaching consequences. 1) There is no means to appeal an unreasonable refusal, and one that might be supported by a friend on a JOHS committee. 2) There is no sense for the employer to refuse to pay the employee and then be charged with discrimination under subsection 45 of the Act. This investigation only deals with discrimination on the basis of the work refusal, not whether the worksite is safe or not. If this investigation lead[s] to a determination of a safe worksite and a possible return to work order, then and only then, would I recommend an employer stop the employee’s salary. 3) Without access to an independent investigator, then air quality work refusals could result in many employees refusing to work, retaining their pay and costing the employer replacement employee salaries. 4) In this case, the employer has an employee working in the worksite that Mrs. Gillis has refused work within. ( I am concerned that if this worksite is truly unsafe, then we may be putting the replacement employee’s health and safety at jeopardy.) This situation is unreasonable, it can not continue, and it needs the immediate intervention of the Division to resolve this issue. [25] The Director responded by letter dated October 3, 2000 in which he stated: With respect to the Board’s request that the Division make an investigation in order to determine whether the workplace is “safe”, I would advise that based on my understanding of the Act, there is no jurisdiction for an officer to investigate a work refusal unless the refusing employee reports the work refusal pursuant to subsection 43(2)(c) of the Act. You will note that this provision requires the employee to report the work refusal firstly to the supervisor and then to committee. I would agree with your comments that these steps have been followed. But in my view, the employee has not reported the matter to the Division. (Emphasis Added) [26] And further: To reiterate the point that I made in my letter of September 11, 2000; I do not believe that we have the jurisdiction to investigate a work refusal, at this time. The legal advise (sic) that I have indicates that my decision to provide no advise (sic) pursuant to Section 43(1)(c) of the Act provides you with a decision which can be appealed under Section 69(1) of the Act. An appeal of a Director’s decision can be initiated by completing the enclosed form and forwarding it to the Occupational Health & Safety Appeal Panel at the address identified within 21 days. (Emphasis Added) [27] The School Board appealed the Director’s decision to an appeal panel set up under the Act. There is no dispute, in this case, that the appeal panel was properly constituted under the Act. [28] Section 69(5)(b) of the Act provides that: . . . the appeal panel shall hold a hearing that provides any aggrieved persons who have so requested the opportunity to present evidence and make representations, in accordance with the regulations. [29] All of the interested parties were represented before the appeal panel, namely: the Director, the School Board, the Nova Scotia Teachers’ Union (NSTU) representing the employee Ms. Gillis, and the Canadian Union of Public Employees (CUPE). [30] Section 69(6) of the Act provides that: An appeal panel may, by order, confirm, vary, revoke or suspend the order or decision appealed from or make any order that an officer is empowered to make pursuant to this Act. [31] An officer (which, by s. 3(a) of the Act, includes the Director) has the power under s. 55(1) of the Act as follows: An officer may give an order orally or in writing to a person for the carrying out of any matter or thing regulated, controlled or required by this Act or the regulations, and may require that the order be carried out within such time as the officer specifies. [32] After hearing the submissions of all parties, the appeal panel adjourned and subsequently, on June 1, 2001 filed a written decision. The decision of the appeal panel [33] On the basis of the submissions made to it by the various parties, the appeal panel defined the issues before it as follows: 1. Does the legislation provide an employer with the legal right to compel the Division to investigate a work refusal? 2. Having complied with section 43(2)(a)(b), can an employee report the refusal to the Division pursuant to subsection 43(2)(c) only after the occupational health and safety committee (committee), if any, has unanimously recommended that the employee return to work? [34] As to the first issue, the appeal panel said the following: Section 43, the right to refuse provisions of the Act, are unique. Unlike other sections of the Act which require the employer to act to ensure compliance, the right to refuse provisions specifically require the employee to report the refusal. This would conform with the fact that the right to refuse unsafe work is a statutory employee right. The Act makes no provision for an employer to report a refusal pursuant to subsection 43 (2)(c). Other jurisdictions do make specific provision for an employer to report a refusal to the government agency. [35] And further: The Act does not empower an employer to report a refusal pursuant to subsection 43(2)(c). The Division is therefore under no obligation to respond to a request by an employer that an officer investigate the refusal and determine whether or not the work place is safe. If the legislation intended to empower an employer to report a work refusal it would state so. [36] The appeal panel’s decision on this issue is not challenged on this appeal. [37] As to the second issue, the appeal panel said the following: It is the Director’s position, and that of the NSTU, that subsection 43(2)(c) can only be triggered by subsection 43(1)(b). In other words, an employee can only report the refusal to an Officer for investigation if and when the JOSH (sic) unanimously advises the employee to return to work, and the employee is not satisfied with that advice. However, the legislation does not specifically state that. Subsection 43(1) states that the work refusal is in effect until subsections (a) (b) or (c) have been applied to the refusal. Subsection 43(1)(c) provides for an investigation by an officer as a criterion under which the refusal is in compliance. Section 43(2)(a)(b)(c) is quite specific. It states that the employee shall report the matter to the supervisor, then to the committee, and then to the Division if the matter is not remedied to the employee’s satisfaction at steps (a) and (b). Subsection 43(2)(c) does not say that the employee shall not report the matter to the Division until the committee has unanimously advised the employee to return to work. [38] And further: Even though the Act places no time limit on the duration of a work refusal, the intent of section 43 appears to be that the matter be dealt with promptly. However, the Director argued that a refusal can continue indefinitely, without being investigated by the Division, until the committee has unanimously advised the employee to return to work. If this were the case, there are circumstances in which parts of, or an entire work place could be brought to an indefinite halt pending a unanimous decision by the committee to advise an employee to return to work. It also means that any one committee member may, for any reason they choose, valid or invalid, prevent an employee from reporting the refusal to the Division, and thus indefinitely prevent the Division from investigating the refusal (contrary to the Director’s statement in exhibit A1, tab 8, page 3). This would deny the employee of a statutory right. [39] And further: The whole purpose of the Act is to promote safety, not remove workers from hazards rather than eliminate the hazards. The purpose of subsection 43 appears to be to resolve, without undue delay, the issue of the unsafe workplace condition (the matter), if any. The NSTU also stated that an investigation pursuant to subsection 43(2)(c) must be requested by the employee. There is nothing in the Act or in section 43 which states or implies that this is required. [40] The appeal panel concluded: The Panel finds that the correct interpretation of section 43 is that an employee is in compliance with subsection 43(1) provided the employee complies with the obligatory requirements of subsection 43(2)(a)(b)(c). Specifically, if the matter is not remedied to the employee’s satisfaction after complying with subsection 43(2)(a)(b), and the employee reports the refusal to the Division pursuant to subsection 43(2)(c), the employee’s statutory right to have the refusal investigated by the Division is automatic. Ms. Gillis complied in full with section 43 in December 1999, and subsequently in February 2000. (Emphasis Added) [41] While the panel decided that the Act contains no legal obligation for the Director to comply with an employer’s request that the Division investigate the employer’s report of a work refusal, the appeal panel decided that the Division had been duly notified by the employee, pursuant to s. 43(2)(c) that the matter which caused her work refusal of December 22, 1999 had not been remedied to her satisfaction. As a result the appeal panel ordered the Director, or an officer designated by him, to investigate the matter of the employee work refusal, and provide advice as to whether she should return to work pursuant to s. 43(2)(c) of the Act. The appellant’s grounds of appeal [42] On the appeal to this court the Director raises four grounds of appeal: 1. That the appeal panel erred in law and jurisdiction by addressing issues not properly before it; namely, whether the employee reported her work refusal to the Division pursuant to s. 43(2)(c) of the Act; 2. That the appeal panel erred in law and jurisdiction by ordering the Director to investigate a s. 43 work refusal, and exceeded its jurisdiction contrary to s. 69(6) of the Act; 3. That the appeal panel erred in law in making material findings of fact not supported by the evidence, namely that the employee had reported her work refusal pursuant to s. 43(2)(c) of the Act; and 4. That the appeal panel erred in law in its interpretation and application of s. 43 of the Act. [43] Section 70 of the Act sets out the jurisdiction of appeal panels and the standard by which its decisions are reviewed by this court: Jurisdiction of appeal panels and court review 70 (1) Subject to subsection (2), an appeal panel has exclusive jurisdiction to determine all questions of (a) law respecting this Act; (b) fact; and (c) mixed law and fact, that arise in any matter before it, and a decision of an appeal panel is final and binding and not open to review except for error of law or jurisdiction. (2) The review of a decision of an appeal panel shall be conducted (a) by the Nova Scotia Court of Appeal, and only with leave of that Court; and (b) with recognition that the appeal panel is established, for the purpose of this Act, as an expert body. (Emphasis Added) [44] In my opinion it was entirely within the jurisdiction of the appeal panel to make the decision, and grant the order which it did in this case. Further, the appeal panel made no error of law in reaching the conclusion which it did. For these reasons there is no basis on which this court should interfere with its decision. I will set out my reasons for coming to this conclusion as I deal with the appellant’s four grounds of appeal. The First Ground of Appeal That the appeal panel erred in law and jurisdiction by addressing issues not properly before it; namely, whether the employee reported her work refusal to the Division pursuant to s. 43(2)(c) of the Act; [45] The position of counsel for the Director on this ground of appeal can be summarized as follows. The matter before the appeal panel was a matter solely between the Director and the School Board, and was restricted to one issue; namely, whether the Director had an obligation to respond to a request from the School Board. Since the appeal panel decided that the Director had no such obligation under the Act, that was the end of the matter. The appeal panel had no jurisdiction to venture into other issues; specifically whether the employee had, in fact, reported her work refusal to the Division, and the consequences of that report. [46] This position, by counsel for the Director, ignores the reality of what took place here. The Director had decided that he had no authority to investigate the employee’s work refusal for two reasons. Firstly, his decision was based on his interpretation of the Act that there must be unanimous agreement by the JOHS Committee that the employee return to work before the employee can report her work refusal to the Division. Secondly, he decided that the Act did not permit an employer to report a work refusal to the Division. [47] It was the Director’s decision which the School Board appealed to the appeal panel. In the form of notice of appeal to the panel, and under the portion of that notice identified as “the specific part(s) that I am appealing . . .”, the School Board provided: The decision of the Executive Director of the Occupational Health and Safety Division not to provide an officer to determine whether a workplace is safe or not. [48] All of the interested parties (the School Board, the NSTU representing the employee, the Director and CUPE) participated in the appeal to the appeal panel. All of the interested parties signed, in advance of the appeal, an agreed statement of facts which contained detailed references to discussions between the employee and the Division in November 1999 and February 2000. All of the interested parties addressed the panel on the issue as to whether the employee had made a “report” to the Division under s. 43(2)(c) of the Act. None of the interested parties took the position, before the appeal panel, that the issue of whether the employee had reported her work refusal to the Division was not properly before the appeal panel. [49] In summary, the issue as to whether the employee had reported her work refusal to the Division under s. 43(2)(c) of the Act was, clearly, a question that arose in the School Board’s appeal of the Director’s decision, and the appeal panel was within its jurisdiction to deal with that question under s. 70 of the Act. The order which the appeal panel granted, as a result of its consideration of this question, is another matter which will be dealt with in considering the second and fourth grounds of appeal. [50] I would dismiss the first ground of appeal. The Second Ground of Appeal That the appeal panel erred in law and jurisdiction by ordering the Director to investigate a s. 43 work refusal, and exceeded its jurisdiction contrary to s. 69(6) of the Act. [51] While counsel for the Director concedes that a report from an employee to the Division, under s. 43(2)(c) of the Act, obligates the Director to conduct an investigation into the employee’s work refusal, counsel for the Director submits that the appeal panel had no jurisdiction to order such an investigation, because there is no specific provision in the Act giving the appeal panel that jurisdiction. [52] This submission is completely opposite to the position which counsel for the Director took before the appeal panel. [53] In the notice of appeal to the appeal panel the School Board requested the following relief: The remedy I am requesting is: The investigation by an officer of Occupational Health and Safety Division of the Department of Labour of a work refusal by an employee located at Windsor Regional High School to determine whether the workplace is safe or not. [54] In the submission to the appeal panel, counsel for the Director said, quite correctly: The Appeal Panel’s authority to vary or revoke a decision appealed from does not include the power to order the Director or anyone else associated with the OHS Division “to assign an OHS Officer to investigate a workplace and to make a determination as to whether there are reasonable grounds to believe that the workplace is unsafe”. Any such order, instead, must be to require an investigation of the matter of the employee’s work refusal and to provide advice to the employee whether to return to work pursuant to subsection 43(1)(c) of the Act. (Emphasis Added) [55] The terms of the order, which counsel for the Director suggested to the appeal panel is, precisely, the terms of the order which the appeal panel granted in this case. [56] Section 67(1) of the Act sets out the provisions under which an aggrieved person may appeal a decision of an officer (and an officer, by definition, includes a Director): Right to appeal and consequences of appeal 67 (1) An aggrieved person may appeal (a) an order made by an officer pursuant to this Act or the regulations; (b) the decision of an officer not to issue an order; (c) the decision of an officer to advise an employee to return to work or the decision to provide no advice, pursuant to clause 43(1)(c); or (d) any decision for which a right of appeal to the Director is provided in the regulations, within fourteen days after the order or decision is served on the recipient, by making written application to the Director. [57] The decision of the Director in this case was that he had no authority to investigate this work refusal, and his decision, therefore, was to provide no advice pursuant to s. 43(1)(c) of the Act. [58] As I have pointed out earlier in these reasons s. 69(6) of the Act provides that an appeal panel may by order “confirm, vary, revoke or suspend the order or decision appealed from or make any order that an officer is empowered to make pursuant to this Act.” [59] The Director, who is an officer by definition, may order another officer to conduct an investigation (s. 55(1) of the Act). That is all that the panel has done in this case. [60] It would make little sense to empower an appeal panel to review the decision of a Director not to act, without also empowering it to order the Director to take action in the event the appeal succeeded. [61] I would dismiss this ground of appeal. The Third Ground of Appeal That the appeal panel erred in law in making material findings of fact not supported by the evidence namely that the employee had reported her work refusal pursuant to s. 43(2)(c) of the Act. [62] The finding of fact which counsel for the Director submits was not supported by the evidence was the finding that the employee had reported the matter of her work refusal to the Division in conformity with s. 43(2)(c) of the Act. [63] Section 43(2) of the Act sets out the requirements of an employee who has exercised the right to refuse to work pursuant to s. 43(1). Those responsibilities include reporting it to a supervisor (which clearly the employee had done in this case) and where the matter is not remedied to the employee’s satisfaction, reporting it to the JOHS Committee (which clearly the employee had done in this case) and thirdly: (2) Where an employee exercises the employee's right to refuse to work pursuant to subsection (1), the employee shall (c) where the matter is not remedied to the employee's satisfaction after the employee has reported pursuant to clauses (a) and (b), report it to the Division. (Emphasis Added). [64] There was ample evidence to support the appeal panel’s conclusion that the employee had reported the matter of her work refusal to the Division pursuant to s. 43(2)(c) of the Act. In fact there was evidence before the appeal panel that an officer of the Division had acknowledged that the employee had complied with the provisions of s. 43(2). Further, in my opinion, the appeal panel was correct in deciding that there was nothing in the Act, or in s. 43 of the Act, which states or implies that the employee is not only to report her work refusal, but must request an investigation by the Division. The appeal panel correctly concluded: . . . if the matter is not remedied to the employee’s satisfaction after complying with subsection 43(2)(a)(b), and the employee reports the refusal to the Division pursuant to subsection 43(2)(c), the employee’s statutory right to have the refusal investigated by the Division is automatic. Ms. Gillis complied in full with section 43 in December 1999, and subsequently in February 2000. [65] I would dismiss this ground of appeal. The Fourth Ground of Appeal That the appeal panel erred in law in its interpretation and application of s. 43 of the Act. [66] The submission of counsel for the Director is that the appeal panel’s interpretation of s. 43 of the Act is inconsistent with the foundation upon which the Act is made; namely, the internal responsibility system. Counsel contends that the appeal panel should have interpreted the provisions of s. 43 bearing in mind that the primary responsibility for workplace health and safety is shared by those connected with the workplace. Had the appeal panel done so, counsel contends, it would have decided that the employee cannot (under s. 43(2)(c)) report the workplace refusal to the Division until the JOHS Committee has unanimously advised the employee to return to work, which did not happen in this case. Further, that the employee’s “report” to the Division must be a “request” for a investigation, which it was not. [67] I do not agree. The appeal panel’s interpretation of these sections of the Act, set out in § 37-40 of these reasons, is in my opinion, the correct interpretation. [68] Further, on this ground of appeal, and with respect to this appeal generally, it is apparent that in the circumstances of this case the internal responsibility system failed. A brief review of the circumstances will demonstrate that point. The employee exercised her right to refuse to work because of fumes in the workplace. The employee complied with all of the reporting obligations which are upon her under s. 43(2) of the Act, and she is still not satisfied that the problem has been remedied. The JOHS Committee has met on two occasions and, on each occasion, has advised the employee not to return to work. There was evidence before the appeal panel that the JOHS Committee “likely will never unanimously advise the employee to return to work.” None of the parties challenged the School Board’s position that it has addressed all issues related to health and safety that it was able to identify. The employee remains off work on full pay. While it is true that the primary responsibility for creating and maintaining workplace health and safety in this school is on the School Board, the JOHS Committee and the employee, it is patently obvious that in the circumstances of this case the internal responsibility system has failed. There is a classic stalemate. The circumstances of this case call for the application of s. 2(d) of the Act which sets out the supplementary role of the Division under the internal responsibility system; i.e. “to intervene appropriately when those responsibilities are not carried out.” [69] The decision and order of the appeal panel, requiring the intervention of the Division, are not, in the circumstances of this case, inconsistent with the internal responsibility system provided for in the Act. [70] Whether the supplementary role of the Division (to intervene appropriately) is any different in the case where, as here, there is a collective agreement between the employer and the employee, was not a matter that was raised on this appeal. In fact, whatever interplay there may be between a collective agreement, occupational health and safety generally, and the provisions of the Act was not a matter that was raised by any of the parties on this appeal. For that reason I have not considered what, if any, relevance those matters may have to this case. [71] I would grant leave to appeal however I would dismiss this appeal. I would order the appellant to pay to the respondent School Board and to the party CUPE their costs of this appeal each in the amount of $1,500.00 plus disbursements. Flinn, J.A. Concurred in: Glube, C.J.N.S. Oland, J.A.