WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100156
OBJECTION BY: Employer
PARTICIPANTS: Employer, Worker, Worker Representative
ISSUE
The employer objects to the Adjudicator’s decisions of March 28, 2008 and October 1, 2008, levying a penalty against their firm for re-employment breach. The employer appeals to have the penalty rescinded.
HOW THE ISSUE ARISES
The general background facts of the claim are not at issue and are briefly summarized below.
On September 26, 2007 this worker, born in 1961, injured his left arm and elbow while pulling on some bolts with a wrench. The worker reported the incident in the company’s first aid logbook on September 27, 2007. The worker continued to perform his job as an Applications Maintainer (Front End Preventative Maintenance and Repair Maintainer) until he sought medical treatment on October 16, 2007. The employer was concerned with the fact that during the interval between September 26, 2007 and October 16, 2007 the worker did not complain to the employer of any ongoing soreness in his left elbow, and performed regular job duties, without restrictions.
As previously noted, the worker first sought medical attention on October 16, 2007. Medical advice from the worker’s physician indicated that he should be placed on modified work effective from October 16, 2007. The employer complied and provided the worker with modified work, at full wages.
On December 18, 2007 the employer notified the worker that they had surveillance videos showing the worker shovelling snow in front of his home and therefore working outside of his restrictions. Effective December 21, 2007 the employer terminated the worker’s employment as they found that the worker had misrepresented his level of impairment.
In a decision dated January 9, 2008 the adjudicator found that the employer did not have just cause for terminating the worker’s employment. The employer was found to be in breach of section 41 of the Workplace Safety and Insurance Act and therefore loss of earnings (LOE) benefits was paid to the worker for this lost time, from December 18, 2007.
The employer subsequently sent a detailed letter (dated February 12, 2008) to the Workplace Safety and Insurance Board (WSIB) explaining that they were concerned as the worker had been performing regular job duties, not modified work, during the 3 week interval between the date of accident and date of layoff. The worker did not complain of any ongoing problems until he was disciplined on October 16, 2007 for taking too long for breaks. After being disciplined the worker then sought medical attention and was off work from October 16, 2007.
The employer was initially charged $50,799.84 penalty for a re-employment breach. The amount was later amended to $10,841.00 as the worker was rehired effective March 17, 2008.
The employer is appealing to have the penalty rescinded as they contend that the worker was suspended as they found him to have purposely and willingly deceived and defrauded the company. The worker’s representative (union) acted on his behalf and was able to assist in having the worker reemployed effective March 17, 2008.
The Adjudicator was unable to rescind the section 41 re-employment penalty. The employer’s objection is the issue now under appeal.
AUTHORITY
Operational Policy Manual Documents:
19-02-03 Workplace Party Co-Operation
19-04-02 Re-employment Obligation
19-04-03 Compliance with the Re-employment Obligation
19-04-08 Termination after Re-employment
19-04-09 Re-employment Penalties and Payments
Workplace Safety and Insurance Act:
Section 41
RESOLUTION METHOD AND PROCESS
Contact was made with the employer’s representative who agreed for the Appeals Resolution Officer to proceed to a decision based on the information contained within the claim record, along with their submission of July 6, 2010.
A Participant Form was received from the worker and therefore his representative was contacted and advised of the resolution method.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision in this claim, I have had regard for the record, the applicable law and policy, as well as the interested parties’ view on the issue.
In considering a worker’s entitlement to WSIB benefits, a decision maker is mandated to have regard for WSIB legislation and related policy.
WSIB Policy 19-02-03 concerning workplace party co-operation states in part:
If the WSIB determines that an employer is not co-operating in ESRTW activities, the decision-maker notifies the employer of the
obligation to co-operate in ESRTW, and
finding of non-co-operation.
WSIB Policy 19-04-09 regarding re-employment penalties and payments states in part:
If the WSIB determines that the employer has not fulfilled the re-employment obligation, the WSIB may
levy on the employer a penalty of up to the equivalent of the worker's net average earnings (NAE) for the year before the injury, and
make payments to the worker, as if the worker were entitled to loss of earnings (LOE) benefits.
The WSIB may reduce the amount of the penalty, if the employer
subsequently meets the re-employment obligation, or
does not meet the re-employment obligation, but offers the worker suitable work at a wage loss.
In deciding whether to levy a re-employment penalty, the decision-maker may also determine whether a finding of non-co-operation is appropriate.
Workers are entitled to re-employment payments regardless of whether the WSIB levies a re-employment penalty against the employer.
When I assess all of the pertinent information in the claim file, I find that the employer was not in breach of the re-employment obligations. In reaching this conclusion, I had regard for all of the available information, however found the following details particularly relevant:
I carefully considered the employer’s letter, in particular I note their comments in correspondence dated February 12, 2008. The employer became concerned that the worker was misrepresenting his level of impairment when he performed regular duties from the date of accident on September 26, 2007, until he was disciplined for taking extended breaks on October 16, 2007. It was from this date, October 16, 2007, that the employer began to provide the worker with modified work, after formal medical attention was sought.
I gave significant weight to the employer’s letter dated March 11, 2008 in which they note that upon obtaining video surveillance of the worker performing duties, on December 2 and 3, 2007, which appeared to conflict with his restrictions, they confronted the worker. The worker subsequently obtained a medical note dated
December 18, 2007 which then stated the worker may lift as tolerated. It was the employer’s position that the worker purposely and willingly deceived and defrauded the company, which led to the worker’s (temporary) termination.
I note that the worker’s representative (the union) became involved and was subsequently able to mediate a return to work. The employer had been objecting to the allowance of this claim. The union negotiated a return to work and advised the WSIB that under the circumstances they support the rescinding of the penalty against the employer.
The worker representative asked that the employer’s penalty be rescinded as it was felt that there may be a downside risk in having the issue of entitlement brought forth to a hearing. However I note that the adjudicator (memo 20) upheld the penalty as the employer was found to be “clearly in breach”.
In my opinion the employer had not, as the adjudicator previously concluded, breached its re-employment obligations pursuant to section 41. The employer had concluded that based on the evidence available to them (surveillance videos) demonstrated that the worker was being dishonest. Accordingly, the worker’s employment was terminated. For reasons that we need not address in this decision, the worker’s termination grievance was resolved.
The adjudicator initially concluded that, notwithstanding the videotape of the worker shovelling snow, the evidence was insufficient to conclusively determine that the worker had misrepresented himself.
Thus, the adjudicator found that the employer was unable to rebut the presumption in s.41(10) of the Workplace Safety and Insurance Act (“WSIA”) that the worker’s termination was unrelated to his injury. A penalty was levied against the employer for its breach of the re-employment obligation.
I understand and accept that the employer had difficulty in accepting the fact that the worker was performing modified work and yet they had video tape proof of him shoveling snow at his home. The employer may have rushed to judgment about the worker but I can accept that they believed that the worker was “purposely and willingly deceiving and defrauding the company”.
The employer acted without a complete understanding of the worker’s medical condition. The employer, after a flawed and hurried interpretation of the results of that investigation, summarily terminated the worker’s employment, without allowing the worker any opportunity to explain or to be medically evaluated in light of the investigation results.
In coming to my conclusion I wish to be clear that the worker’s condition was not fully understood nor explored by the employer when the decision to terminate employment was made. In future, as a cautionary comment it is best to obtain all information before an employer makes a decision, such as a decision to dismiss an employee which is irrevocable and has serious consequences.
I now turn to the issue of whether the employer breached the reinstatement obligation. Section 41 of the WSIA sets out the legal obligations in this respect. The employer did provide the worker with modified work effective October 16, 2007, the date that the worker was medically authorized to perform modified work only. The employer dismissed the worker as it was their position that the worker misrepresented his level of impairment when he was seen on video tape shoveling snow outside his home.
I do not find that the employer acted in bad faith or that it deliberately intended to thwart the reinstatement obligation in the Act. I find that the employer made an honest but perhaps misguided decision, and ultimately a poor decision when it acted to terminate the worker’s employment. However, I do not find any malicious intent or any blatant non compliance by the employer.
In determining whether a penalty should be imposed on this employer, we note that the employer’s decision to terminate the worker’s employment was based on the employer’s belief that the worker had intended to defraud the employer. What may initially have appeared to the employer to be fraudulent conduct by the worker seems to me, when seen in light of that additional information, to have been rash and imprudent behaviour.
While I am persuaded that the worker’s compensable injury played a significant role in the events that led to the worker’s dismissal, we are also persuaded that the worker’s actions, while not fraudulent, also played a substantial role in the events leading to his dismissal. In my view, the employer’s decision to dismiss the worker was misguided. On the other hand, the worker played a substantial role in creating the confusion that resulted in his dismissal.
WSIB Policy 19-04-09 notes that the WSIB “may” levy a penalty on an employer. It appears, therefore, under both Board policy and the legislation that the imposition of a penalty on an employer involves the exercise of discretion. The policy document cites examples of situations where the Board will waive or reduce a re-employment penalty. The circumstances noted address fact situations such as subsequent re-employment or voluntary termination of employment.
I am persuaded that the present case is one in which imposition of any penalty on the employer would be contrary to the merits and justice of the case. The employer’s decision to terminate the worker’s employment was based, in part, on the actions of the worker. In light of this factor, I am persuaded that it is therefore appropriate to rescind the penalty levied against the employer in this case. The employer’s penalty for breach of re-employment under s.41 is to be rescinded and no penalty is to be imposed upon the employer.
CONCLUSION
I conclude that the employer’s penalty for breach of re-employment is to be rescinded.
The employer’s objection is therefore allowed.
DATED October 5, 2010
S. Bennett
Appeals Resolution Officer
Appeals Branch