APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20220061
OBJECTING PARTY:
worker (self represented)
RESPONDENT:
employer (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
breighann fairburn, appeals resolution officer
APRIL 29, 2022
ISSUE
The worker objects to the Case Manager’s decision dated April 15, 2020, determining that the worker’s earning basis be set based on their status as in non-permanent employment.
BACKGROUND
On June 26, 2015 this Instructor was running the gas lab where the co-operative students were working. During the course of the class, the worker and a student were involved in a verbal altercation. The worker began losing time from work on March 15, 2016. In a decision dated June 7, 2016, the worker received initial entitlement to benefits for a Traumatic Mental Stress injury and entitlement to full loss of earnings benefits effective March 15, 2016.
In a decision dated July 28, 2016, the Payment Specialist determined that the worker’s adjusted long –term average earnings weekly rate effective June 7, 2016 was $xxx.xx based on the employer’s provided income information. They based the rate on their status as a worker in non-permanent employment. Following receipt of the worker’s earnings information, their long-term rate was recalculated to $xxx.xx per week based on non-permanent employment.
The worker participated in Work Transition services. They received entitlement to a 15% non-economic loss (NEL) benefit for their permanent post-traumatic stress disorder. The worker began working with a new-employer on September 25, 2018.
On February 13, 2020, the worker, through their representative, provided new information requesting a reconsideration of the determination that they worked in a non-permanent employment pattern.
In their decision dated April 15, 2020, the Case Manager determined that the worker’s earning basis was to be set based on their status of non-permanent employment. As a result, the Case Manager determined that the worker did not have entitlement to a long-term rate recalculation on the basis of permanent employment. This decision included a new appeal paragraph.
This worker objects to their earnings basis being based on working in non-permanent employment. This objection is now before the Appeals Services Division.
AUTHORITY
Operational Policy Manual
Published
18-02-03 – Determining Long-term Average Earnings: Workers in Permanent Employment
18-02-04 – Determining Long-term Average Earnings: Workers in Non-permanent Employment
January 28, 2013
February 15, 2013
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons set out below, I find that the worker’s earnings basis is to be based on a worker in permanent employment.
Worker Position
On February 15, 2020, the worker, through their previous representative, provided their position that they were in a permanent employment pattern. They submitted that the worker’s hours were full time. They were scheduled hours up to the end of the year, and had previously voiced their concerns to their employer about the label of a temporary worker.
Employer Position
The employer did not return their Respondent Form. They have provided correspondence throughout the file indicating their position that the worker was hired on a temporary basis and was not a permanent employee.
When determining the worker’s earning basis, I have reviewed Operational Policy 18-02-03 – Determining Long-term Average Earnings: Workers in Permanent Employment.
This policy defines permanent employment as employment where a worker
Is employed (by the employer) 52 weeks a year, with no seasonal or cyclical layoffs, and
Has no set termination date, apart from retirement
May be full or part-time
May have earnings that vary from day to day or week to week due to irregular hours or method of payment.
It also notes that permanent employment may involve occasional short-term layoffs or non-earning periods such as shortages of work, plant shutdowns during holidays, retooling, strikes, or lockouts. Such temporary layoffs or non-earning periods do not reflect a break in the employment pattern. The decision-maker’s determination to consider a worker to be in permanent or non-permanent employment is generally based on the earnings information provided by the employer.
Operational Policy 18-02-04 – Determining Long-term Average Earnings: Worker’s Non-permanent Employment provides that earnings for a worker in non-permanent employment typically fluctuate as the worker moves from job to job, has periods of unemployment, or experiences periods of higher or lower earnings. Therefore, it is likely that a worker’s long-term average earnings will be different than the short-term average earnings.
Non-permanent employment is employment where a worker is hired:
For a specific period of time, or
For a temporary period through a union hall.
Workers in non-permanent employment include:
Contract workers
Seasonal or cyclical workers, and
Temporary agency workers
The employer submitted in the Employer’s Report of Injury (Form 7) dated April 11, 2016, that the worker was a temporary full-time employee paid an hourly rate plus 10% vacation on a weekly basis.
As policy indicates, I have reviewed the earnings information to determine if the worker is in a permanent employment pattern. Based on my review of the earnings information provided by the employer, I have determined that the evidence supports that the worker was employed 52 weeks of the year. There are a two weeks of vacation and Christmas shutdown, for which the worker did not receive pay. I have determined that is within the policy and definitions of a permanent worker and represents temporary occasional non-earning periods without a break in the employment pattern.
The Loss of Earnings Long-term Earnings Review completed by the employer on July 6, 2016 noted that the worker earned $xx,xxx.xx from February 25, 2015 to December 31, 2015 and $xx,xxx.xx from January 1, 2016 to March 14, 2016. The employer indicated that the worker’s lost time from work without pay on statutory holidays and that the worker received their statutory holiday pay as an inclusion in the 10% vacation pay they received as per the ICI Collective Agreement. The worker had two weeks of time off work, unpaid for Christmas shut down and two more weeks for vacation. There was one day for which no explanation was recorded.
The Record of Employment (ROE) dated May 5, 2015 noted that the worker worked 40 hours per week from February 25, 2015 to March 15, 2016 with the exception of statutory holidays, Christmas shut down and two weeks of vacation. The employer indicated that the worker’s last day for which they were paid was March 15, 2016, with their final pay period ending on March 19, 2016. This ROE indicated that it was issued due to a shortage of work/end of contract or season, however, the employer provided the worker with an amended ROE dated August 21, 2020, for the same period. This ROE confirmed that it was issued due to illness or injury.
The worker, through their prior representative, provided their Instructor Training Schedule for 2016, showing that they were scheduled to work the entire year, up to at least December 2016. They submitted that this supports that they were not a non-permanent worker. The worker provided an email dated October 3, 2016, which was sent to him from the Training Coordinator that was involved in the worker’s hiring process. They noted that the worker left another employer for the full time position with the accident employer. On September 1, 2021, the prior Training Coordinator contacted the Case Manager and provided their statement that the worker was hired as a full time employee and not a part-time employee. Another former co-worker contacted the Case Manager on September 8, 2021 and confirmed that the worker was hired as a permanent employee. These former co-worker are no longer employed with the accident employer.
On March 27, 2020, the employer representative provided their submission that the prior Training Coordinator was laid off in March 2016, was a consultant only, and did not have the authority to authorize any hiring or firing. They submitted that the statements provided by this witness were not valid as a result.
Both of these witnesses, while they did not have the ability to hire and fire, were confirmed to be active employees at the time the worker was hired. I find that their statements support the worker’s position that they were in a permanent employment pattern.
The worker provided their position that the agreement they signed with the employer supported that they were a permanent employee. They noted that the agreement confirmed that the worker was expected to stay with the employer for at least four years or would have to repay a portion of the training that was otherwise provided at no cost.
The employer provided a letter dated May 13, 2015 noting that if the worker’s employment status changed within the next four years, that the course they were currently registered in would require a repayment amount. They noted that after four years of continuous employment with the employer the cost value of the course would be absorbed with no repayment. The employer representative submitted that the training course was offered to the worker to enhance they instructor employability and did not include a promise or obligation for full time work. The employer also provided a document stating that historically all instructors working for the accident employer were paid based on hours worked and the ICI wage schedule. The accident employer has never engaged in any salaried employment contract.
I do not find that the employer’s position, that they did not engage in salaried employment contracts supports that the worker was in non-permanent employment. These facts do not provide evidence of a set termination or contract end date as required in Operational Policy 18-02-04 – Determining Long-term Average Earnings: Worker’s Non-permanent Employment. There is no evidence that the worker was hired as a temporary worker through the union hall. Furthermore, their expectation of repayment of the training course in the absence of continuous employment for a four-year duration supports that there was no expected end date. There is no evidence provided to file to support that the worker was hired on a temporary or non-permanent basis or for a specific duration of time.
I find that the evidence supports that that the worker was employed with the accident employer 52 weeks per year without seasonal or cyclical layoffs and there is no evidence of a set termination date apart from retirement. Therefore, in accordance with Operational Policy 18-02-03 – Determining Long-term Average Earnings: Workers in Permanent Employment, I find that the worker is permanently employed.
As I have determined the worker is permanently employed, I remit to the Operating Area to review and consider if a long-term rate recalculation is required given the worker’s determined permanent employment pattern.
CONCLUSION
The worker is employed in a permanent employment pattern.
The worker’s objection is allowed.
DATED April 29, 2022
BreighAnn Fairburn
Appeals Resolution Officer
Appeals Services Division