DECISION NUMBER: 20220136
OBJECTING PARTY: EMPLOYER
REPRESENTED by: EMPLOYER REPRESENTATIVE
RESPONDENT: WORKER (NOT PARTICIPATING)
HEARING: HEARING IN WRITING
HEARD by: K. MACMILLAN, APPEALS RESOLUTION OFFICER
ISSUE
The employer, through their representative, is objecting to the Case Manager’s decision dated November 2, 2020 to apply a re-employment penalty for breach of the re-employment obligation.
BACKGROUND
On August 7, 2019, the worker was in the course of employment when they felt a pop in their right arm as they lifted a heavy object. A Workplace Safety and Insurance Board (WSIB) decision letter dated August 8, 2019 allowed entitlement to health care benefits and loss of earnings (LOE) benefits for a right arm injury. An Eligibility Adjudicator’s decision letter dated August 20, 2019 authorized entitlement for a ruptured right distal bicep tendon, pending surgical repair, and LOE benefits from August 15, 2019. The worker returned to modified duties on October 29, 2019 prior to being laid off due to the global pandemic on March 16, 2020. A Case Manager’s decision letter dated April 6, 2020 denied entitlement to LOE benefits for the pandemic layoff as the worker had been performing modified duties at pre-injury earnings.
A Return-to-Work (RTW) Specialist issued a non-cooperation warning letter to the employer on August 17, 2020 summarizing attempts to reach them from July 27, 2020 to August 12, 2020. The letter also stated that the employer did not show up to a meeting scheduled for August 6, 2020. A letter from the Case Manager to the employer dated September 8, 2020 documented being unable to reach the employer. The Case Manager stated that the RTW Specialist would be contacting the employer to arrange a meeting as the worker has remained able to perform pre-injury accommodated duties since returning to work on October 29, 2019.
The employer terminated the worker without cause on September 10, 2020. On October 5, 2020, the worker informed the Case Manager that they felt that they were terminated due to the workplace injury. A letter from the Case Manager to the employer dated October 8, 2020 determined that the worker was fit for the pre-injury job with minor accommodations as of September 1, 2020 and that the re-employment threshold was met. The Case Manager requested copies of the worker’s performance reviews, including any documentation of verbal or written disciplinary action received since the worker was hired. The Case Manager’s decision letter dated November 2, 2020 levied a re-employment penalty of $xx,xxx.xx for the period of November 11, 2020 up to the non-inclusive date of August 7, 2021 as the worker was terminated while still requiring accommodations.
The prior employer representative verbally informed the Case Manager on November 12, 2020 that the employer contact had a significant personal matter and that the employer was not purposefully avoiding the WSIB. A formal written submission with additional information was provided on November 20, 2020. A re-employment penalty was formally applied on December 31, 2020. The Case Manager’s reconsideration letters dated March 8, 2021 and June 9, 2021 upheld the re-employment penalty. A Case Manager authorized psychological entitlement on January 14, 2022. A Case Manager decision dated January 26, 2022 determined that the worker was partially disabled with respect to both the physical and psychological injuries.
The current employer representative’s Appeal Readiness Form signed July 18, 2022 requested that the employer’s objection to the re-employment penalty be addressed as a hearing in writing. The employer representative documented not objecting to the issues of level of impairment, payment of LOE benefits, or psychological entitlement. The Case Manager’s letter of August 31, 2022 continued to uphold the original decision of November 2, 2020 to apply a re-employment penalty. The issue is now before me.
AUTHORITY
Workplace Safety and Insurance Act, 1997 Sections 41(11) and 41(13)(a)
Operational Policy Manual
Published
19-02-02 Responsibilities of the Workplace Parties in Work Reintegration
January 2, 2015
ANALYSIS
I find that the re-employment penalty is in order for a breach of the employer’s re-employment obligation. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
Employer representative’s position
The employer representative presents the argument that the worker was not terminated in any way related to the workplace injury, including absences from work, treatment, or a claim for benefits.
The employer representative maintains that the employer terminated the worker due to a decrease in work due to the global pandemic and that the worker did not have the required skills to perform the job.
The written submission of July 18, 2022 submits that the Case Manager’s decision regarding the re-employment penalty does not affect the worker’s entitlement to full LOE benefits.
Is the re-employment penalty in order?
It is my view that the re-employment penalty of $xx,xxx.xx is appropriate for the non-inclusive period of November 11, 2020 to August 7, 2021.
The employer representative submits that there is no basis for the penalty as there is no breach of the employer’s re-employment obligation. Policy 19-02-02, Responsibilities of the Workplace Parties in Work Reintegration, confirms that employers have an obligation to re-employ an injured worker if the following three conditions are satisfied:
The worker has been unable to work as a result of the work-related injury;
The worker was continuously employed with the employer for at least one year before the date of injury; and,
The employer regularly employs 20 or more workers.
In this case, there is general agreement that these three criteria are all met. Briefly, the case record contains the employment agreement signed by the worker on July 13, 2018. The Employer’s Report of Injury signed August 7, 2019 confirms the worker’s date of hire as being July 30, 2018 and that the employer has more than 20 employees. The worker received LOE benefits prior to their return to modified duties on October 29, 2019. Therefore, I accept that the employer has an obligation to re-employ the worker.
The employer representative confirms that there is no dispute that the employer terminated the worker’s employment during the period of their re-employment obligation. As pointed out by the employer representative, Policy 19-02-02 explains that the circumstances surrounding the termination must be examined in cases where the worker is terminated more than six months after re-employment. Policy 19-02-02 directs decision-makers to consider if the termination was for reasons related to the work-related injury and related absences from work, or the claim for benefits. Similarly, I note that Section 41(11) provides the authority for the WSIB to determine whether the employer has fulfilled their obligations. Therefore, I will now turn to the question of if the termination was unrelated to the injury.
Review of evidence
I acknowledge the employer representative’s argument that there is significant evidence to support that the worker did not have the skill set for the job. I have reviewed Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision number xx/xx referenced within the written submission July 18, 2022. While I am not bound by case law, I recognize WSIAT’s determination that the circumstances leading to the termination must be examined in order to determine whether the merits and justice of the case warrant waiving or reducing the penalty.
The employer representative points out that the worker was not employed with the employer for very long and was terminated approximately 11 months following re-employment. The employer representative submits that the employer terminated the worker without cause after learning that the worker did not have the necessary skills to perform the job. The written submission of July 18, 2022 highlights the affidavits confirming that the worker was going to be terminated for this reason prior to the work injury. The argument is presented that the worker made critical mistakes on several occasions at different properties that could have led to serious problems.
I am aware that the worker’s position at the time of injury was as a technology operations manager. The worker’s resume contained within the case record lists in-depth knowledge of various information technology platforms, systems, and services. I find that the termination letter of September 10, 2020 does not provide any reason or list issues with the worker’s performance. The Case Manager’s decision letter of November 2, 2020 states that the employer has failed to submit the requested information. The former employer representative’s written submission dated November 20, 2020 argues the following:
The decision to terminate was made prior to the workplace accident and was based on performance issues;
It was never the employer’s intention to terminate for just cause, but rather without cause once the extent of the performance deficiencies became known;
The employer will terminate without cause if corrective action cannot rectify the issue;
The decision to termination was made early in the morning of August 7, 2019 with the termination to become effective on August 9, 2019; and,
The employer delayed the pending termination once the workplace accident occurred until it was believed that the worker could obtain new employment somewhere else.
I note that the submission of November 20, 2020 lists concerns with the worker’s performance ranging from early August 2018 up into late July 2019, including lack of documentation/service updates, improper setup of configurations, incomplete setup of a firewall, ordering incorrect hardware, and deleting email accounts without archiving them. The submitted materials include an email dated February 6, 2019 requesting a performance review template for the worker’s six-month review. The case record also includes blank copies of both a performance review and an employee corrective action record. I observe that the Employee Corrective Action policy indicates being applicable if job expectations are not met.
I find it material that the submitted documentation does not include any completed performance reviews, completed employee correct action reports, or contemporaneous documentation of corrective action. In fact, the former employer representative verbally indicated to the Case Manager on February 24, 2021 that the employer does not have a copy of the performance review and is unable to track the report. I further observe that there is no corroborating evidence of the employer discussing the possibility of termination earlier in the day on August 7, 2019. In my view, the former employer representative’s verbal indication that the employer has a calendar entry for the management group meeting of August 7, 2019 is insufficient to establish the contents of the alleged meeting.
I recognize the signed affidavit from the Director of Technology dated November 20, 2020 expresses having concerns with the worker’s level of experience and skillset shortly after July 1, 2019. The other two affidavits dated May 7, 2021 and May 17, 2021 support that the Director of Technology raised concerns in or around late June 2019 and that performance concerns were discussed with the worker at the six-month review. The affidavits reference a Level 10 Meeting on June 24, 2019 with senior management and enclose the agenda listing the worker as a topic of discussion. Still, I find that there is no corroborating evidence, such as written minutes, to verify what was actually discussed within the meeting of June 24, 2019. Rather, the agenda simply states “IT Org change” and lists the worker’s name and “performance”.
Overall, I find that there is insufficient objective evidence of what was discussed at either meeting of June 24, 2019 or August 7, 2019. I note that all three affidavits are dated several months after the worker’s termination of September 10, 2020. While I have considered the former employer representative’s explanation of the employer’s lack of responsiveness to the WSIB enquiries, it is my view that this still does not explain why there is no documentation of the meeting minutes or why the employer would not have a copy of the six-month performance review. In particular, I note that the blank copy of the performance review includes a section for Quality of Work and a Performance Improvement Plan as well as areas for comments. Therefore, I accept the worker’s indication that they were terminated as a result of the workplace injury as the employer has not provided any contemporaneous evidence to support that the termination was the result of performance issues and/or a lack of duties.
For all of the above-noted reasons, I find that the reasons for the termination correspond with the work-related injury and claim for benefits. Again, Policy 19-02-02 requires the examination of the circumstances surrounding the termination. As a result, I find that the termination of September 10, 2020 represents a breach of the employer’s re-employment obligation and that the corresponding penalty is in order.
Amount of the applicable penalty
In my view, the amount of the $xx,xxx.xx penalty effective November 11, 2020 is correct and in keeping with Policy 19-02-02.
Section 41(13)(a) and Policy 19-02-02 grant the ability to levy a penalty on the employer not exceeding the amount of the worker’s net average earnings for the year preceding the injury. This penalty is applied seven WSIB business days after the date of the written notice. The penalty may be reduced if the employer subsequently offers suitable work. However, in this specific case, I find that there is no evidence that the employer made any subsequent offer of work after the date of termination.
I accept that the re-employment penalty comes into effect seven WSIB business days after the Case Manager’s decision letter of November 2, 2020, or November 11, 2020. Policy 19-02-02 outlies that the employer is obligated to re-employ until the earliest of the secondary anniversary of the date of injury, one year after the worker is medically able to perform the essential duties of the pre-injury job, or the worker’s 65th birthday. I find that the shortest of these three possibilities is the second anniversary of the workplace injury, or August 7, 2021 as the Case Manager determined that the worker was fit for the pre-injury job with minor accommodations as of September 1, 2020.
With respect to the amount of the penalty, I observe that the weekly net average earnings rate is $x,xxx.xx and that there are 39 weeks between November 11, 2020 (the date the penalty comes into effect) and August 7, 2021 (the two-year mark after the date of injury). On this basis, it is my opinion that the resulting penalty is $xx,xxx.xx as $x,xxx.xx x 39 = $xx,xxx.
CONCLUSION
I conclude that the termination of September 10, 2020 is a breach of the re-employment obligation.
The re-employment penalty of $xx,xxx.xx for the non-inclusive period of November 11, 2020 to August 7, 2021 is confirmed.
The employer’s objection is denied.
DATED November 28, 2022
K. MacMillan
Appeals Resolution Officer Appeals Services Division