APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20220014
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer (not participating)
REPRESENTED by:
None
HEARING:
Hearing in writing
HEARD by:
H. Mohamed, appeals resolution officer
ISSUES
The worker representative, on behalf of the worker, objects to the Case Manager’s (CM) decision dated November 26, 2020, which concluded the employer had not breached their re-employment obligations when they terminated the worker’s employment on November 4, 2019.
BACKGROUND
The worker, who had been working as an IT technician for the employer since May 2018, fell down the stairs and sprained their right ankle on July 10, 2019. The worker remained off work until July 29, 2021, when they returned to their pre-accident job with some minor accommodations. The worker was paid loss of earnings benefits for the lost time.
On November 4, 2019, the worker’s employment was terminated. The worker felt the termination was the result of filing a Workplace Safety and Insurance Board (WSIB) claim. The employer said the termination had nothing to do with the work injury but was related to other factors including a slowdown in business.
The Operating Area subsequently determined the worker had recovered from their right ankle sprain by August 16, 2019. Furthermore, the CM concluded the re-employment threshold criteria of “unable to work” had not been met, and therefore, a comprehensive re-employment review was not conducted. The worker objected to these decisions.
An Appeals Resolution Officer (ARO) decision dated October 22, 2020, upheld the Operating Area decision that the worker had recovered by August 16, 2019. However, the ARO found that the “unable to work” condition had been met and asked the Operating Area to investigate the case to determine whether the employer had breached their re-employment obligations.
After obtaining all the necessary documents from the employer, the CM determined the employer had not breached their re-employment obligations. Rather, the CM accepted the worker was terminated due to economic reasons. This was communicated in a decision dated November 26, 2020.
Accordingly, the only issue to be determined in this appeal is whether the employer breached their re-employment obligations when they terminated the worker’s employment.
AUTHORITY
Operational Policy Manual
Published
19-02-02 - Responsibilities of Workplace Parties in Work Reintegration
January 2, 2015
ANALYSIS
I find the employer did not breach their re-employment obligations when they terminated the worker on November 4, 2019. My reasons follow.
The worker representative did not make any written submissions. Rather, their position outlined on the Appeal Readiness Form is that there is sufficient information contained in the case record to support the worker’s claim for re-employment benefits. The employer is not participating in the appeal.
In determining whether an employer has breached their re-employment obligations, I am required to apply Policy 19-02-02, which states in part, that non-construction employers have an obligation to re-employ their injured workers if the following three conditions (also known as the threshold test) are satisfied:
the worker has been “unable to work” as a result of the work-related injury
the worker was continuously employed with the injury employer for at least one year before the date of injury, and
the employer regularly employs 20 or more workers.
In this case, all three criteria have been met. The previous ARO confirmed the worker was “unable to work” as a result of the work-related injury, the worker had been employed continuously for at least a year before the date of injury and the employer regularly employs more than 20 workers. As such, I am satisfied the threshold test has been satisfied and a re-employment obligation exists.
Next, the duration of the re-employment obligation needs to be determined. Policy 19-02-02 states in part that the employer is obligated to re-employ a worker until the earliest of;
the second anniversary of the date of injury
one year after the worker is medically able to perform the essential duties of his or her pre-injury employment, or
the date on which the worker reaches 65 years of age.
According to the information on file, the worker resumed their pre-accident job duties upon their return to work on July 29, 2019. While there was a minor accommodation in place (providing the worker with an office on the ground floor so they could avoid using stairs), the worker was able to perform their full pre-accident work. As such, I am satisfied that the worker was considered fit to perform the essential duties of their pre-injury employment as of July 29, 2019. Therefore, the re-employment period in this case was in effect until July 29, 2020, which is one year from the date the worker was deemed medically able to perform the essential duties of their pre-injury employment. Policy 19-02-02 states that the employer was required to either:
offer to re-employ the worker in the position the worker held on the date of injury, or
offer to provide the worker with work of a nature and it earnings comparable to the worker’s employment on the date of injury
To summarize, I find the employer had an obligation to re-employ the worker until July 29, 2020, in order to fulfil its re-employment obligation. Since the worker was terminated on November 4, 2019 - approximately six months short of the expiration of the re-employment period - it would appear on the surface that the employer did not fulfil its re-employment obligation. Policy 19-02-02 states that when a worker is terminated within six months of being re-employed, the WSIB presumes that the employer has not fulfilled the re-employment obligation. However, the policy also states that employers can rebut the presumption by showing that the termination within six months of re-employment was not caused in any part by the work-related injury/disease (and related absences from work), treatment for the work-related injury/disease, or the claim for benefits.
According to the memoranda on file, the worker contacted the WSIB on November 6, 2019, indicating they had been terminated from their employment. The worker said their last day worked was on
October 22, 2019. Due to a domestic dispute, the worker was incarcerated until October 30, 2019. The worker said they left a message for their manager indicating they would be returning to work on November 4, 2019. However, upon their return to work that day the worker was taken to a meeting room and asked to sign termination documents. The worker felt the termination was retaliation for filing a WSIB claim.
I note the employer spoke to a Return to Work Specialist on November 8, 2019 advising that the termination had nothing to do with the workplace injury. The employer cited the worker’s recent absence due to incarceration as well as their poor attendance (pre-accident) as part of the decision to terminate the worker’s employment. Additionally, the employer stated there had been a downturn in business resulting in them having to terminate a number of employees.
The employer subsequently provided over 150 pages of documents to support their position. The employer provided a detailed timeline to show that over the summer of 2019 they were experiencing a significant reduction in revenue and sales. The employer indicated they had to lay-off a number of staff in various departments during the summer and fall of 2019. The employer also provided copies of termination letters to various employees to show that the worker was not the only one that was let go. Concerning the IT department, the employer noted they only had two employees including the worker. The other employee had been with them for 22 years and had a better skill set. It was noted that while the worker had good performance, they had average attendance. The worker also did not have access to the Controlled Goods Program. As such, they decided to retain the other individual as opposed to the worker.
According to the employer’s timeline, the worker took October 23, 2019 off as a vacation day. On October 24, 2019, the worker did not return to work and did not call or email their absence. The employer received a call from an unidentified caller indicating that the worker was in jail. The employer was subsequently advised by the worker’s agent that the worker would not be returning to work the week of October 28, 2019. The employer indicated they wanted to terminate the worker at the end of October but decided to wait until the worker returned to the office. When the worker returned on Monday, November 4, 2019, they were effectively terminated.
Having considered the evidence in totality, I find the employer has provided compelling reasons to support that the worker’s termination was unrelated to the work-related injury. The evidence confirms the employer was going through a challenging economic period resulting in staff reductions in various areas of the company. There is no evidence to suggest the workplace injury played any part in the employer’s decision to terminate the worker’s employment. In fact, based on the timeline provided by the employer, the worker was not having any issues with their ankle once they returned to work on July 29, 2019. There is no evidence the worker sought any medical attention or treatment between August 1, 2019 and November 4, 2019. Aside from moving the worker’s office to the first floor, no other accommodations were required or requested. As such, it seems implausible the employer would have terminated the worker in retaliation for filing a WSIB claim when the worker never complained of any ongoing issues, did not request any additional accommodations, or miss any time from work due to the injury. There is no evidence to suggest that the injury and minor accommodations were inconveniencing the employer to such an extent that it motivated them to terminate the worker’s employment. If anything, I find it was the worker’s two-week unplanned absence in late October 2019 that likely influenced the employer’s decision to terminate the worker.
I also find it instructive that the worker representative provided no submissions or arguments to challenge the information provided by the employer. In the absence of any counterargument, I find the uncontested information provided by the employer is likely accurate.
For all of these reasons, I find the worker’s termination had nothing to do with the work-related injury and the employer has satisfactorily rebutted the presumption stipulated in Policy 19-02-02.
CONCLUSION
The employer did not breach their re-employment obligations when they terminated the worker’s employment on November 4, 2019.
The worker’s objection is denied.
DATED: November 19, 2021
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division