WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110019
OBJECTION BY: Employer
PARTICIPANTS: Employer, Employer Representative, Employer Resource Person, Employer Witnesses, Worker, Worker Representative, Observers
HEARING DATE: June 23, 2011
ISSUE
The employer is objecting to the April 16, 2010 determination that found it was in breach of its re-employment obligation to the worker.
HOW THE ISSUE ARISES
This now 49 year old welder was employed by a metal company, when he slipped and fell and injured his right ankle on February 18, 2009. He was treated at hospital and diagnosed with a fractured right ankle. It was anticipated that he would eventually have a full recovery. His ankle was surgically addressed and casted. He was referred for physiotherapy. He returned to work in modified work and graduated hours as of May 25, 2009. He returned to regular duties and full time hours as of July 5, 2009.
The worker’s surgeon indicated on November 10, 2009 that further surgery was scheduled on December 10, 2009 for hardware removal.
On November 19, 2009 the worker called the case manager and advised that he had been packing up his tools, when the supervisor went through his tool box, asking if he had any company tools. The supervisor kept a part of the tool box. The worker was subsequently accused of stealing the employer’s tools, and he was terminated a few days later (Monday, November 23, 2009).
As the worker was terminated within six months of his re-employment, the Workplace Safety and Insurance Act (the Act) requires the presumption that the termination was injury related and that the employer would be required to rebut this presumption.
The re-employment case manager examined the employer’s submissions, which included a copy of the worker’s Record of Employment and a copy of the firm’s “Vision and Values” presentation materials that outlined a few employee expectations. As well, there were two examples submitted of employee theft and terminations that had occurred in December 2009 (subsequent to the worker’s termination), and a December 31, 2009 memo to staff regarding theft and its consequences. There was information regarding terminations in 2005 and 2007.
The case manager indicated that the December 2009 terminations as well as the December 31, 2009 memo could not be considered, as they occurred after the worker’s termination. It was noted that the employer had not provided a record of the worker having been trained on the “Vision and Values” document. It was concluded that the two terminated employees of 2005 were not employees of the firm and that no information was provided on the steps leading to the dismissals. It was concluded that the 2007 example of a termination was not comparable, as the employee had been with the employer less than one year and had experienced extensive constructive discipline. As well, the Police were contacted in that case (the Police were not contacted in the worker’s case). It was also noted that the dismissal occurred after the worker informed the employer of further impending surgery and expressing safety concerns over being assigned to a different job (allegedly affecting his ankle).
As a result, the April 16, 2010 case manager letter advised that the employer had been found in breach of its re-employment obligation to the worker. The worker was awarded loss of earnings (LOE) benefits, and the employer was assigned a penalty of $20,179.54.
By July 2010, it was concluded the worker would have a permanent impairment in his right ankle, and he was referred for a non-economic loss (NEL) assessment.
The NEL assessment resulted in a 14 per cent permanent impairment award granted on October 7, 2010.
EXHIBITS
The employer brought in a box containing the “tools” allegedly stolen by the worker. It was the theft of these tools that led to the worker’s termination.
AUTHORITY
Operational Policies:
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 – Reemployment Penalties and Payments;
19-04-10 – Reemployment Provisions and Collective Agreements.
ASSESSMENT OF THE EVIDENCE AND TESTIMONY
I have reviewed the record and have examined the evidence and testimony. The key issues in this appeal include:
Whether the presumption under Section 41(10) of the Act would apply.
Whether the employer’s contention that there was just cause for dismissal can be supported by the evidence.
Whether the evidence is sufficient to support that the worker’s termination bore any relationship to his claim or workplace injury.
The issue of whether the thresholds for the employer to have a re-employment obligation to the worker is not an issue in this appeal. The parties agree that the worker was continually employed by the employer for at least one year prior to the date of accident, that the employer had more than 20 employees at the time of the accident, and that the worker was unable to work for a period of time after the accident. Hence, the employer had an obligation to re-employ the worker after the accident.
The employer representative made arguments at the hearing to the effect that the worker had actually been terminated more than six months after his re-employment with the employer. Hence, the presumption clause under Section 41(10) of the Act (that directs the WSIB to presume that a breach had occurred) would not apply. She noted that the case manager’s decision used the date the worker returned to his full time regular duties (July 6, 2009) as the date of re-employment. She argued that the worker began graduated modified duties in May 2009, and, hence, the six month clock should have begun in May 2009. She contended that the employer re-employed the worker for six months and three days.
In my review of the file, I note the employer’s Form 42 (Progress Report dated November 11, 2009) specifically indicated that the worker became re-employed as of May 25, 2009. This is the employer’s own documentation. The employer’s letter of termination is dated November 23, 2009. Hence, the worker was terminated within six months of re-employment regardless of whether the May 25, 2009 date or July 6, 2009 date is used.
As a result, the presumption under Section 41(10) would apply. As indicated, Section 41(10) also allows the employer the opportunity to rebut this presumption.
From the employer representative’s arguments and the testimony of the two employer witnesses, the employer’s entire rebuttal rests on the argument that the worker was fired for an incident of theft on November 18, 2009.
All the witnesses and the parties acknowledged that the worker had no disciplinary history to speak of. There were suggestions that sometime in the past the worker had been in the Scrap Area inappropriately. An employer witness stated emphatically that the employer does not allow the personal use of any scrap by the employees. Hence, employees are restricted in this area. The employer has contractual obligations to its clients to ensure that none of the scrap material and/or any trademarked material would find its way into the market. Although they did not provide any documented material regarding this, they advised that this was their internal policy that had been made clear to all employees.
However, there is no evidence that this vague recollection by a witness led to any disciplinary action. When asked about this, the worker testified that he had been asked to obtain scraps of metal by management for use in the rebuilding of products, and he welded some scrap pieces at the direction of management.
There was also some suggestion by management witnesses that the worker had been doing maintenance work on the side for a trailer park, and they speculated that he may have used company tools on such work. There was no history of discipline on this issue nor was there any documented evidence. The worker credibly clarified that he lived at the park, and the park owner regularly had scrap to get rid of. He spoke to management about bringing in the scrap, (as part of his commute) and collecting any monies on behalf of the trailer park. He asserted that management agreed to this and was well aware that the monies were divided 50/50 between him and the trailer park (in recognition of his transport of the materials).
Other than these vague assertions by the management witnesses, there is no disciplinary history. It was generally acknowledged that the worker had a good performance record while employed with the employer.
This leaves the November 18, 2009 incident as the only possible employer justification for just cause termination.
It is clear from the documentation on the file and from both of the parties that the worker was told on November 18, 2009 by his supervisor that he was being moved from the welding area to another area. It is also clear that he argued with supervision about the transfer. The worker asserted that he complained of ankle related difficulties because of the need to use ladders and steps in the job. The employer witnesses suggested they did not know of any such continuing difficulties. It appears that the decision to transfer the worker was final.
According to the worker’s testimony, after acknowledging his transfer, he spoke with his Supervisor, and advised that he no longer needed to keep his tools at the employer’s premises, as all the necessary items for work in the new area would already be there. The supervisor agreed to this. The worker asserted that he reminded the supervisor a total of four times that he would be bringing his pick up truck into the welding area at the end of the day to get the tools. At each time, he asked the supervisor to advise the employees at the weigh scales that he would be coming through there at the end of the day to get to the welding area.
From the testimony of all the witnesses, it was advised that the weigh scales area was the point where incoming shipments of scrap were brought in to be weighed. The staff at the Scales Department work over top of the area where the trucks come in for weighing. All parties agreed that all staff were strictly prohibited from bringing any vehicles into the Scrap Yard or Scales Area. Workers in the Scales Area have been instructed to immediately report any employee vehicle entering the area. The employer witnesses stated that any employee vehicle on the premises needed to be accompanied by supervision (no documentation was provided). The worker asserted that an employee vehicle could come on the premises if allowed by supervision, and he received permission his supervisor. That supervisor told the worker that he would alert the staff at the Weigh Scales. The worker advised that he had his tool box in the welding area for about six years.
Unfortunately, the supervisor has been terminated from the employer since the time in question and is not available for comment.
According to the worker, at the end of his shift, he brought in his pick up truck and backed it into the welding area to pick up his tool box. He described the box as very large (over five feet high) and extremely heavy with tools. The box was divided into two parts, upper and lower. The upper part was described as being too heavy for even two people to lift. As a result, he used a crane to lift the upper half into the back of his pickup truck. He had co-workers assist him. The lower half was lighter, and he was in the process of loading that part with the assistance of co-workers, when the regional manager appeared and questioned him about what he was doing.
According to the regional manager (now Director of Operations), he was alerted by Scales staff that an employee’s truck had passed from the entrance, moved over the scales, and had entered the welding area. He went to see what was going on. He found the worker in the process of loading the bottom half of the tool box with co-workers. He asked them to put it back down on the floor. He was suspicious of the worker’s motives because of the way the truck had entered the premises without apparent permission. He questioned the worker about the tool box and whether there were any employer tools in it. The worker appeared to hedge when replying in the negative, so he asked again. The worker suggested that it was possible. This led to more suspicion. The worker allowed him to search the upper half of the tool box. When the top was opened, he saw a pile of rags, and this made him think that something was hidden. He found a number of items that he believed belonged to the welding shop tool crib. He then contacted the vice‑president of Operations to come down. The two of them decided that the tool box should remain there for a further search and that the worker would be sent home. They would meet to determine a final outcome.
The worker, in his testimony, acknowledged the history of what had happened. However, he advised that the rags were only in the tool box to keep dirt off the tools. He pointed out that the tools brought in Exhibit 1 were covered in dirt, which was what he tried to avoid. He denied being evasive with the regional manager and asserted that he was only thinking about what was in his tool box. He downplayed the significance of the items that had been found, and he denied any intention of stealing.
Both parties outlined that the tool crib area (the area where the employer’s tools are kept) was an area where employer’s tools could be borrowed with permission. These tools were expected to be returned.
The worker was presented with a letter of termination dated November 23, 2009. The letter outlined the items the worker was alleged to have stolen.
To support the contention that the incident of November 18, 2009 was truly an incident of theft, the employer brought forth Exhibit 1, a box containing the items the worker was alleged to have stolen. It was the size of a standard banker’s box. The employer representative went over each and every item during the regional manager’s testimony.
Analysis of the Theft Issue
When I reviewed the items listed in the letter of termination (prior to the hearing), I must admit that I questioned the validity of suggesting that the taking of some of these items would constitute theft. After the presentation, I now question the suggestion that taking any of these items would constitute theft. I clearly recognize why the Police were not contacted.
Indeed, I would not identify any of the items as tools. At best, some of the items could be described as used, non‑durable items that are attached to tools. The used grinding discs and polishing discs are disposable items that are used with tools and are discarded afterwards. I would also classify the grip ties as disposable items. There were several items in the box that were acknowledged by the employer as not actually being part of their property, including water pipe faucets. A few of the items I would simply view as garbage.
I strongly question how packets of disposable items such as welding whips and tips could be considered tools. Would the employer also consider half-empty packets of nails or screws as stolen tools? As for the partially full spray can of lubricant (similar to WD 40), I strongly question whether the tool crib area would expect such an item to be returned at this point let alone on a daily basis.
I also do not understand how the employer could consider a half empty packet of electrical tape rolls to be property that needs to be returned. There were three rolls remaining from a packet of six.
I believe I can offer a comparable example. If the employer representative were to be transferred to another legal department within her employer, would she be expected to return pads of paper and pens she had received from her previous department?
Allegedly there were four old wire brushes (of questionable value) found in the worker’s tool box. The worker denies recalling any more than one of these being in his tool box and that one would have been his own wire brush. I have accepted the credibility of his testimony. This leaves a couple of tape measures. The worker asserts that at least one of them was his.
This raises the question of why the employer’s presentation did not include any demonstration of markings on the items to identify them as theirs.
By contrast, the worker’s tool box would have contained thousands of dollars worth of actual tools. To preserve these tools, the worker advised that he would lock this box any time he was away for more than a few minutes.
When questioned on the value of these allegedly stolen items, in their present condition, the regional manager asserted that they would be worth around $500.00. In my estimation, the totality of the items (excluding the items that were acknowledged as not being the employer’s items) would fetch no more than $20.00 at a garage sale. Many of the items would remain unsold.
Given this, I question the reliability of the regional manager’s testimony. On the other hand, I find the testimony of the worker was both consistent and credible.
As a result, I find there was no basis for just cause termination.
Rebuttal of Section 41 (10)
However, the question remains whether the employer has been able to rebut the presumption under Section (41)(10) of the Act. The employer has argued that the termination bore no relationship to the worker’s claim or injury and, instead, was related to just cause termination. As noted above, I find that the argument was not convincing.
The employer has not asserted any alternative reasons for the termination. Hence, I only have the suggestion that it was related to claim or injury.
The worker testified that he specifically argued against being moved to the new job as there would be climbing activities, and he still had upcoming surgery to remove the surgical hardware from his ankle. I also note that the worker’s surgeon indicated on November 10, 2009 that further surgery was scheduled for December 10, 2009 for hardware removal. The worker alleged that management was aware of this. The regional manager asserted that he had no awareness of any further surgery. However, as indicated, I can assign less weight to his testimony in terms of evidence. The vice‑president claimed that he had no awareness either, but he acknowledged that he had little day to day contact with the worker.
As a result, I find that the only likely possibility here was a relationship between the worker’s injury/claim and his termination. The employer has failed to rebut the presumption under Section 41(10) of the Act.
CONCLUSIONS
I conclude:
The employer had a re-employment obligation to the worker.
As the worker was terminated within six months of being re-employed, the presumption under Section 41(10) (that the termination was related to the worker’s claim/injury) applies.
The employer has failed to rebut the presumption.
As a result, the re-employment determination of April 16, 2010 is upheld.
The employer’s appeal is denied.
DATED July 21, 2011
P. Prummel
Appeals Resolution Officer
Appeals Branch