DECISION NUMBER: 20220017

OBJECTING PARTY: EMPLOYER REPRESENTED by: EMPLOYER REPRESENTATIVE

RESPONDENT: WORKER (not participating) REPRESENTED by: WORKER REPRESENTATIVE

HEARING: IN WRITING

HEARD by: S. VAGADIA, APPEALS RESOLUTION OFFICER

DATED: FEBRUARY 22, 2022

ISSUE

The employer objects to a Case Manager’s (CM) September 4, 2020 decision that found they breached their reemployment obligation.

BACKGROUND

On February 26, 2020, this then 25-year-old Technician was descending stairs when she missed a step and fell onto her knees. The worker missed work until beginning modified duties on March 25, 2020.

An April 23, 2020 decision from an Eligibility Adjudicator (EA) confirmed initial entitlement was in order for a right knee sprain. Loss of earnings (LOE) benefits were approved to March 8, 2020 inclusive but denied from March 9, 2020. This was because the worker was partially impaired and capable of performing the modified duties offered by the employer at that time.

The worker was terminated on May 11, 2020. She was performing modified duties. The employer indicated the decision was due to verbal altercations and intimidation contrary to their policies.

A September 4, 2020 decision from the CM found the employer breached its reemployment obligation. The CM indicated the evidence provided by the employer did not rebut the presumption clause. The CM reconsidered and confirmed the decision on October 13, 2020.

A December 29, 2020 decision from the CM found the worker was not cooperating in the development of her return to work plan. Her LOE benefits were to be reduced by 50% effective January 8, 2021 and then terminated on January 22, 2021 if the non-cooperation continued.

A February 17, 2021 decision from a Return to Work Specialist (RTWS) noted the closure of services due to the worker’s inability to participate (the birth of a child on February 9, 2021).

A March 8, 2021 decision from the CM noted the post-accident change in circumstance. LOE benefits were closed effective February 9, 2021 and a recoverable overpayment was created.

A May 11, 2021 decision from the CM found the worker recovered from her compensable injury. The maximum medical recovery (MMR) date was April 30, 2021.

AUTHORITY

Operational Policy Manual

Published

19-02-02 Responsibilities of the Workplace Parties in Work Reintegration

January 2, 2015

ANALYSIS

The employer submitted the following:

• The workplace injury was not a reason for the termination. The worker had a similar injury the previous year and was accommodated by the employer and resumed work without incident.
• The worker contravened/breached their violence/harassment/bullying policy. This led to her termination.
• She had a very loud verbal altercation with her manager that was heard by office staff and the plant manager, who had to intervene.
• The meeting at the end of day on May 11, 2020 was to hear the worker’s side of the situation (yelling at her manager). There was no intent to fire her. However, the worker was uncooperative during the meeting and after reviewing her disciplinary record and ongoing aggressive behaviour, a decision was made to terminate her employment due to breaching their policy.
• The termination decision involved Human Resources, the plant manager, and the worker’s manager.
• The worker did not sign the termination letter but a copy was mailed to her the next day.
• She also had three previous written warnings. The employer hoped the warnings would resolve the issues but because the worker then breached the policy, she was terminated immediately.

I find the employer has not rebutted the presumption clause. I note the following in arriving at my decision.

Policy 19-02-02 states that when a worker is terminated within six months of being re-employed, the WSIB presumes the employer has not fulfilled the re-employment obligation. However, 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.

I note the employer’s Workplace Violence, Harassment and Bullying policy. It in part states the following:

• There is zero tolerance. Workplace violence, harassment, or threats will not be tolerated.
• The employer is committed to investigating reported incidents of violence, harassment, or bullying in an objective and timely manner, taking necessary action; and providing appropriate support to victims.
• The employer must ensure that an appropriate investigation is conducted, the nature of which depends on the circumstances of the incident or complaint.
• The person who investigates should not be involved in the incident.
• The employer needs to treat an incident or complaint seriously, act upon it promptly, and allow time and sufficient resources to investigate and deal with it.
• Documentation of the investigation is important. Where possible it should include names, dates, the complaint, details of the incident(s), notes from interviews and meetings, associated documents or evidence, any investigation report, and any actions taken as a result of the incident or complaint and investigation.
• Prohibited behaviour will result in discipline up to and including termination for cause. Examples include violence, harassment, threats, intimidation or bullying.

The policy also provides definitions:

• Workplace harassment is a course of vexatious comments or conduct against a worker that is known or ought reasonably to be known to be unwelcome, including workplace sexual harassment, psychological harassment, or personal harassment. It can involve unwelcome words or actions that are known or should be known to be offensive, embarrassing, humiliating or demeaning. It may also include behaviour that intimidates, isolates or discriminates.
• Examples include:
  • Making remarks, jokes or innuendos
  • Displaying or circulating offensive pictures or materials
  • Bullying
  • Repeated offensive or intimidating phone calls or emails
  • Workplace sexual harassment
• Workplace bulling involves acts or verbal comments that could mentally hurt or isolate a person in the workplace. It may involve negative physical contact as well. It usually involves repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade, or humiliate a person or group of people. It is also described as the assertion of power through aggression. The acts may be obvious or subtle.
• Examples include:
  • spreading rumours
  • excluding or isolating someone socially
  • intimidating a person
  • making offensive jokes
  • yelling or using profanity
  • belittling a person’s opinions
• A threat is defined as the implication or expression of an intent to inflict physical harm or actions that a reasonable person would interpret as a threat to their physical safety.

The employer submitted three “Written Counselling” reports dated February 7, April 27, and April 28, 2020. They spoke to:

1. A break of company policy (failing to follow a policy/procedure regarding loads that were going to be late to customers).
2. A work quantity/quality issue (incomplete paperwork, not informing the manager when coming in late/leaving early, and an incomplete work assignment).
3. A breach of company policy (recording of incorrect information).

There is also a June 24, 2020 email from the plant manager, which noted three meetings with the worker:

1. The first meeting was on April 28, 2020. They discussed why the worker recorded false data. Her response was that everybody did this in the past. She was given a written warning.
2. The date of the second meeting is not specified (it appears to be the first week of May 2020). It was in relation to the worker’s complaints about her manager (who joined in November of 2019). It was agreed the manager would improve communication with the team and allow the worker to be a support/assistant to help/prepare the team for an audit.
3. The final meeting was on May 11, 2020. It was related to the worker yelling at her manager. The worker was advised this was doing nothing to improve the relationship with the manager or team. She was terminated because of this incident.

Lastly, there is an undated termination letter. It indicated the decision was due to the verbal altercation and intimidation (directed by the worker towards the manager) contrary to their policies. It stated the worker was spoken to on several occasions in regards to resolving her issues with her manager without success. I note in their written submission the employer indicated the worker left the meeting (where she was terminated) without signing the termination letter and it was mailed to her the next day (on May 12, 2020). However, in a June 10, 2020 memo the employer advised that a termination letter was not issued because the worker was let go in person. A record of employment (ROE) was issued. It is unclear when this undated termination letter was written and when it was mailed to the worker.

Although the worker did not participate in this appeal, I note her statements in the following memos:

• In a June 15, 2020 memo, the worker stated that she would complete the sedentary duties offered by the employer and then ask for additional suitable work. However, her manager instead had her work on the floor, contrary to her restrictions. She complained to her manager a lot about this (the need for suitable work) to no avail. It was the worker’s view that the termination was related to her complaints about not getting suitable work.
• In a June 24, 2020 memo the worker indicated she had minor issues at work in the past related to not completing paperwork properly etc. but there was never an issue regarding her conduct. She confirmed speaking loudly during the May 11, 2020 meeting because she was frustrated and felt she was not being heard. However, she was never disrespectful. She was also not provided progressive discipline in regards to the matter.

The employer indicated the worker was warned about her behaviour/attitude on several occasions in the past. I do not find the evidence before me supports this assertion. The three “Written Counselling” reports had nothing to do with the worker’s behaviour/attitude. Similarly, the first two plant manager interventions noted in the June 24, 2020 email had little to do with the worker’s behaviour/attitude. In fact, the second meeting seemed to address communication concerns surrounding the manager, who was asked to improve her communication with the team and allow the worker to be more of a support.

Policy 19-02-02 speaks to the importance of the presumption clause, which I note applies to this case. The WSIB presumes the employer has not fulfilled its obligation. The onus is on the employer to demonstrate the termination had nothing to do with the workplace injury / WSIB claim. In this case, it appears the termination decision was the result of an argument related to the worker’s view that she was not being provided suitable duties for the duration of her shifts. I find little to suggest the worker’s actions amounted to workplace harassment or bullying. I also find little to suggest a history of aggressive behaviour. Given my view that the presumption clause has not been rebutted, I find the employer is in breach of its reemployment obligation.

CONCLUSION

As outlined in the above decision I conclude the employer breached its reemployment obligation. The employer’s objection is denied.

DATED February 22, 2022

S. Vagadia Appeals Resolution Officer Appeals Services Division