WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20100200
OBJECTION BY: Employer
PARTICIPANTS: Employer, Employer Representative
HEARING: N/A
ISSUE
The employer is appealing the May 31, 2010 re-employment determination and the resulting penalty.
HOW THE ISSUE ARISES
This now 51-year old, tool and die-maker had been with the employer for seven years, when he bent and twisted in an awkward manner, while servicing a press die, and he experienced low-back pain on March 6, 2007. There was an initial diagnosis of a low-back soft-tissue injury (STI). He was absent from work for one full shift, and he returned to work on March 8, 2007. Although he was assigned to his regular duties, the worker has contended that the job he performed involved some self-accommodation.
The worker continued working in these duties until July 26, 2007. At that time, he was advised of a 13-week layoff due to economic conditions and restructuring. Other employees were also laid off at that time. This layoff period was extended as of October 22, 2007 and as of December 10, 2007. The March 14, 2008 notification from the employer advised that this layoff had become permanent.
The worker subsequently applied for a determination on whether the employer had fulfilled its re-employment obligations.
The July 14, 2008 case manager’s (CM) decision accepted that the basic thresholds for a re-employment obligation to exist had been met. The worker had been continually employed for over one year, the employer had over 20 employees, and the worker had been unable to work (albeit one day) as a result of the injury. As well, it was accepted that the termination had occurred within six months of the worker being re-employed by the employer, and, hence, the employer was presumed to have failed to meet its re-employment obligation to the worker under the Workplace Safety and Insurance Act (the Act). However, it was noted that the Act did allow the employer the opportunity to rebut this presumption, and it was accepted that the worker was laid off due to company restructuring and seniority provisions. As a result, the termination was found to be unrelated to the worker’s injury or claim, and the employer was found to have rebutted the presumption. No re-employment breach was identified.
The worker objected to this conclusion. Once the objection was reviewed, the matter was referred for an investigation.
Although the November 2008 investigator’s report was received by the Operating Area, there was little reference made to it in the decision of November 25, 2008. The decision noted that the worker had been terminated within six months of being re-employed and noted that the Act directed the decision-maker to presume that the re-employment obligation had been breached when this occurred. Hence, it was determined that the employer had breached its obligations, and a penalty of $36,222.16 was levied (equal to one year of the worker’s salary). No indication was made of the employer’s opportunity to rebut the presumption under the Act.
The employer appealed the determination and the penalty.
When the appeal and the file were received in the Appeals Branch (AB), it was noted that there had been no review of whether the employer had been able to successfully rebut the presumption. As a result, the file was returned to the Operating Area to make further enquiries and to review the evidence to see if the employer was able to successfully rebut the presumption.
The May 31, 2010 re-consideration decision accepted the employer’s need to layoff employees due to the economic downturn and the need for restructuring. However, it was noted that the employer did not utilize a pre-established seniority system (it was non-unionized) to determine appropriate layoffs nor did the existing documentation regarding company layoffs outline specifics that would allow a decision-maker to objectively compare why some employees were laid off and others were not.
The decision-maker noted there were employees doing comparable jobs in the worker’s department who had less seniority but had not been laid off and were transferred and/or cross-trained for other positions within the company or a sister company. The employer’s rationale for the selection of the worker for layoff was that he was seen as having less potential for adaptation in other areas of the company.
As well, the decision maker noted that some others in the tool and die department remained in the downsized area.
The decision found that the employer provided insufficient evidence to rebut the presumption under the Act. It was confirmed they had breached their re-employment obligation to the worker. However, it was determined that the worker had been re-employed for a significant portion of the obligation, and this had an effect on the penalty to the employer. The penalty applied to the employer was reduced from $36,222.16 to $27,182.95 to reflect the several months that the worker had been re-employed. The employer was reimbursed for the difference.
The employer is appealing the re-employment determination and the resulting penalty.
Submissions
The employer has provided no further submissions beyond what was offered prior to the CM’s May 31, 2010 decision. They have requested a 60-Day Expedited Decision based on the existing available evidence.
AUTHORITY
Workplace Safety and Insurance Board Operational Policy Manual Documents (OPM):
19-04-02 – Re-employment Obligation
19-04-03 – Compliance with the Re-employment Obligation
19-04-05 – Alternative Work Comparable to the Pre-injury Job
19-04-08 – Termination After Re-employment
19-04-09 – Re-employment Penalties and Payment
19-04-10 – Re-employment Provisions and Collective Agreements
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
I have reviewed the record and have examined the evidence. The key issue in this appeal is the sufficiency of the evidence to support that the employer has been able to successfully rebut the presumption clause under Section 41(10) of the Workplace Safety and Insurance Act (the Act).
As with all re-employment appeals, we would need to establish that the thresholds, for a re-employment obligation to exist, have been confirmed. This was reviewed on two occasions by the Operating Area, and, in both decisions, the thresholds were found to have been met. I note from the evidence that at the time of the worker’s injury, the employer had several hundred employees, and the worker had been employed by them, continually, for at least one year (seven since the date of hire). As well, he missed one day of work and was considered to be unable to work for a time after his injury. Hence, I accept that the thresholds for a re-employment obligation to exist, on the part of the employer, have been confirmed.
There appears to be no issue of whether the presumption clause under Section 41(10) of the Act, applies to this situation. The employer has acknowledged that worker was laid off within six months of being re-employed, and they have not raised this as an issue. The worker was re-employed as of March 8, 2007, and he was laid off some four-and-a-half months later on July 26, 2007. Hence, I can confirm that the presumption clause applies in this situation. This leaves the issue of whether the evidence supports that the employer has been able to rebut the presumption.
In the employer’s Objection Form, it is argued that the worker had been terminated for economic reasons and that there exists clear evidence of this in the file.
From the evidence, it is clear that there were economic reasons for the restructuring of the company, and these substantiate the need for some layoffs. The automotive industry had been significantly affected by a downturn since 2007. However, the need for layoffs, in itself, would not be sufficient to rebut the presumption.
Form the available evidence, I note that at the date of accident the employer had 400 employees, and there were 26 employees working in the tool and die department. There was also a sister company that appears to have performed similar and complementary functions, but it is unclear how much of a reduction was experienced by the sister firm. The evidence also indicates that the total employment at the accident employer as of November 2008 dropped to 325 employees, while the tool and die department dropped to four employees.
I also note, from the evidence, that a considerable number of employees had been transferred to different areas of the company and the sister company, and they were not laid off. The employer’s list of employees affected from November 2007 to March 14, 2008 included 37 employees who were transferred to other areas, while 35 were laid off due to restructuring. The question is raised of why the worker fell into the laid off group, when the employer had a clear obligation to provide him with his regular duties or any available alternative comparable duties. The employer was not constrained by any union contact.
The employer has cited a February 29, 2000 document entitled, “Lay Off and Recall Procedures”, which appears to be part of a larger document entitled, “Introduction to Job Security and Opportunities”. This would appear to be part of some form of employee handbook. The document states:
”Working together, we should not have the need to layoff employees. However, if due to uncontrollable circumstances the necessity arises, the following guidelines will be used:
Your division will give employees as much advance notice of a planned layoff as is reasonably possible;
Together we will also consider alternatives, such as work sharing;
If a temporary layoff (13 weeks or less) becomes necessary due to unexpected shortage of work in a particular department/function/work centre, employees may be laid off by department/function/work centre seniority. In case of permanent layoff or temporary layoff greater than 13 weeks, the employee having the lowest seniority (division wide) will be laid off first, provided the remaining employees have the qualifications, skills, and education necessary to do the available jobs. Each situation will be assessed to ensure the fair, equitable, and consistent treatment of employees.
In the case of a recall to work from layoff, the laid-off employee having the greatest seniority shall be recalled first provided he/she has the qualifications, experience, and education necessary to do the available job.”
While the document confirms that seniority is a factor in determining layoffs, the employer has reserved the right to also evaluate whether those more-senior employees have the flexibility to adapt to the available jobs. It was contended that the worker did not have the flexibility to adapt to the available jobs.
The worker had been employed as a tool and die maker. This is considered to be a highly-skilled job, and one would anticipate he would have a number of transferable skills. From the written correspondence available on the file, it would also appear that he has superior written communication skills. There does not appear to be any obvious reasons for an inability to perform related functions or even unrelated functions.
The employer has not cited any history of poor work performance as the rationale for the worker’s layoff.
From the employer’s “Layoff and Recall Procedures” document, it is clear that the worker would likely fulfil the guideline regarding seniority. He had been employed there for seven years, and both parties acknowledge that he had more seniority than a number of the individuals who remained with the employer.
Thus, the only justification which could be made is that the worker was so restricted in his vocational capacities that he could not obtain any of the four remaining tool and die positions or any of the other 37 positions made available to the other workers, including many with less seniority.
Under WSIB OPM, 19-04-05, Alternative Work Comparable to the Pre-injury Job, the workplace parties consider:
“duties to be performed
skills, qualifications, and experience required
degree of physical and mental effort
level of responsibility and supervision of other employees
rights and privileges associated with the position
wages and employee benefits
working conditions, hours of work, and right to work overtime
geographic location of the work site
opportunities for advancement and promotion, and
whether the jobs are covered by the same collective agreement.”
In my review of all the evidence provided by the employer in documentation and verbally to the investigator, I find no evidence that the worker was appropriately evaluated under the employer’s own criteria, or that any of the alternative positions were evaluated by the criteria under OPM, 19-04-05.
The only evidence I have before me to support the employer’s position is their own statement asserting that they did evaluate the worker. Clearly, this is insufficient to rebut the presumption clause under Section 41(10) of the Act. Hence, I find the employer failed to fulfill its obligations to the worker.
In regard to the penalty applied to the employer, I find that the previous decision-maker correctly applied the period of time the employer failed to meet its obligations to the worker, and correctly calculated the penalty from the worker’s earnings.
CONCLUSION
I conclude the employer had an obligation to re-employ the worker after his injury and had terminated him within six months of re-employment, and, as such, the WSIB is required under the Act to presume that the re-employment obligation had not been fulfilled. The employer has had a number of opportunities to rebut this presumption (as is allowed under the Act), but it has failed to do so. I also conclude that the penalty applied to the employer has been calculated correctly.
The employer’s appeal of the May 31, 2010 re-employment determination and the resulting penalty is denied.
Dated: August 31, 2010
P. Prummel
Appeals Resolution Officer
Appeals Branch