WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150019
DECISION DATE:
April 23, 2015
OBJECTING PARTY:
Employer
REPRESENTED by:
Self- Represented
RESPONDENT:
None
HEARING:
Hearing in Writing
HEARD by:
C. da Cunha, Appeals Resolution Officer
ISSUE
The employer seeks the revocation of the reconciliation debt interest (RDI), premium not reported (PNR) and period reconciliation not reported (PRNR) charges levied upon its account for 2012, 2013 and 2014.
BACKGROUND
On August 7, 2014, the Workplace Safety and Insurance Board (WSIB) informed the employer that based on information provided by the Canada Revenue Agency (CRA), it was not registered with the WSIB and that it might have a requirement to do so.
The employer contacted the WSIB on August 26, 2014. The WSIB registered it on September 10, 2014, assigning it to rate group 184 - 10, Poultry and Egg Farm Operations (CU 0114-000), retroactively to January 1, 2012.
The Decisions
On October 20, 2014, October 31, 2014, November 11, 2014 and November 14, 2014, the WSIB levied the following charges, respectively:
$298.83 in RDI for 2012; adjusted to $259.68 on January 28, 2015.
A $17.05 PRNR penalty for 2013.
$87.39 in RDI for 2013.
A $490.50 PNR penalty for the reporting period of July 1, 2014 to September 30, 2014.
The Employer’s Position
The employer argues for the reversal of these charges on the grounds that it was not aware of the WSIB’s existence or of its legislated obligations in relation to it prior to being contacted on August 7, 2014.
AUTHORITY
Operational Policies:
11-01-03: Merits and Justice
14-02-02: Registration
14-02-07: Employer Non-Compliance Interest and Charges
14-02-15: Voluntary Registration
Administrative Practice Document:
Voluntary Registration (February 1, 2014)
Practice Guidelines Document:
Guidelines for Cancelling/Revising Penalties or Interest (February 27, 1998)
WSIB Fact Sheet:
Voluntary Registration
ANALYSIS
The PRNR Charge for 2013
I find that the PRNR penalty for 2013 is to be rescinded.
While the authority documents noted above state that the PRNR will not be waived for employers identified through an investigative process such as the CRA accord, in an August 7, 2014 letter on behalf of its President and Chief Executive Officer, the WSIB assured the employer that it would not face any penalties if it registered. The employer contacted the WSIB on August 26, 2014, shortly after receiving the initial letter and prior to being notified a second time.
It is clear from the letter of August 7, 2014 that it was the intent, and very likely the practice, of the WSIB not to levy penalties based on retroactive reporting obligations upon employers that registered before being contacted a second time. Under the circumstances, it would be unfair to uphold the PRNR charge levied for 2013.
The $490.50 PNR Charge from July 1, 2014 to September 30, 2014
I find that the WSIB correctly levied a PNR penalty with respect to the employer’s 2014 third quarter reporting obligations. However, I also find that the amount of the penalty is excessive and needs to be adjusted
Firstly, by August 26, 2014, at the latest, the employer was aware of the existence of the WSIB.
Secondly, on September 10, 2014, the Employer Service Centre advised the employer of its legislated obligation to report its payroll quarterly and that its next premium was due on October 31, 2014.
Thirdly, the employer did not submit its Premium Remittance Form (PRF) for the third quarter of 2014 until November 18, 2014; 18 days after the deadline to do so.
Finally, there is no suggestion on file of any extenuating circumstance to reasonably explain or justify the delay in the submission of the PRF.
Noting the above, I cannot accept the employer’s argument with respect to its failure to meet this reporting deadline. Therefore, I find that the WSIB correctly levied a PNR charge against the employer. However, the February 27, 1998 practice guidelines document states that a penalty in excess of 10% of the annual actual premium assessment is considered to be unreasonable.
The record shows that the 2014 actual premium assessment for the employer was $972.54. Therefore, a PNR of $490.50 is unreasonable as it equates to over 50% of the annual assessment.
The PNR charge for the third quarter 2014 is to be adjusted to $97.25 or 10% of the 2014 annual actual premium assessment.
The $259.68 and $87.39 in RDI for 2012 and 2013, Respectively
I find that the employer is not entitled to a reversal of the RDI charges levied upon it for the following reasons:
The evidence shows that the employer is compulsorily covered under the Workplace Safety and Insurance Act and that it had actual assessable payrolls in 2012 and 2013. Therefore, premiums were due in those years but were not paid.
Operational policy 14-02-02 directs that an employer must contact the WSIB and provide information about their business operations within 10 calendar days of the date it employs its first worker; the employer did not do so.
Operational policy 14-02-15, the administrative practice document and the fact sheet noted above stipulate that the waiving of RDI on past due premiums is not to be provided as an incentive to employers that are identified and registered via the WSIB’s information-sharing agreement with the CRA.
The February 27, 1998 practice guidelines document noted above allows a decision-maker to consider the cancellation/revision of RDI when:
A WSIB error is made (i.e. a misapplied payment, a keying mistake, assessable earnings processed instead of assessment);
The assessment or penalties upon which interest was calculated are revised downwards or cancelled;
A delay is experienced in payment and the employer can provide proof such as a courier receipt, registered mail record or a stub or receipt date stamped by the WSIB;
An account is closed, finally adjusted and all charges other than the interest on a debit balance is paid (up to $500 in interest on an overdue balance may be relieved under these circumstances);
The employer states that it mailed the payment at least five days before the due date and the payment shows as being received within five calendar days after the statement month end;
There is a situation/disaster beyond the employer’s control leading to the late payment (e.g. postal strike, fire, flood, etc.); or,
The employer has provided a reasonable explanation for the late payment and there has been a pattern of “good payment” (i.e. having not more than one previous instance of late payment in the past two reconciled years of operation).
There is no evidence in the record confirming the existence of any of these circumstances in relation to the employer’s past due premiums.
- In the August 7, 2014 letter to the employer, the WSIB makes no commitment to waive the retroactive RDI. In fact, it is clear from the wording of the letter that the employer will be responsible for paying premiums and interest for 2012 and 2013 even if it registered in a timely fashion in response to the letter.
While I acknowledge the employer’s position regarding its lack of awareness of the WSIB, I can find no basis in law, policy or past practice upon which to revoke or revise the RDI.
CONCLUSION
The employer’s objection is allowed in part, as follows:
The period reconciliation not reported penalty of $17.05 is rescinded;
The premium not reported penalty of $490.50 is adjusted to $97.25; and,
The debt reconciliation debit charges of $259.68 and $87.39 remain unchanged.
DATED April 23, 2015.
C. da Cunha
Appeals Resolution Officer
Appeals Services Division