DECISION NUMBER: 20230068

OBJECTING PARTY: EMPLOYER

REPRESENTED by: EMPLOYER REPRESENTATIVE

RESPONDENT: WORKER (NOT PARTICIPATING)

HEARING: HEARING IN WRITING

HEARD by: K. MACMILLAN, APPEALS RESOLUTION OFFICER

DATED: APRIL 26, 2023

ISSUE

The employer representative, on behalf of the employer, is objecting to the Case Manager’s decision of November 22, 2022 that the employer breached their re-employment obligation and a penalty would be levied if the worker was not re-employed by December 2, 2022.

BACKGROUND

On October 28, 2021, the worker tripped and fell onto their outstretched arms, landing on the sidewalk while in the course of employment as a Transit Driver. There was immediate medical attention with a diagnosis of a right wrist and left shoulder soft tissue injury. Entitlement to loss of earnings (LOE) benefits began October 29, 2021. The worker attempted modified duties in early November 2021. A fracture assessment on November 15, 2021 confirmed that the right wrist was immobilized. A return-to-work plan developed on December 7, 2021 determined that pre-injury duties were suitable with accommodations.

The Case Manager’s decision letter dated December 9, 2021 determined that the available modified duties were not suitable and authorized full LOE benefits from November 11, 2021 to the worker’s return to work on December 6, 2021. A Case Manager’s decision letter dated April 4, 2022 confirmed that entitlement was previously authorized for a left shoulder sprain and a right wrist fracture. The decision letter extended entitlement to include a supraspinatus tear of the left shoulder. The employer posted an external job opening for Location Manager in Province X in May 2022. The worker underwent surgery for the left shoulder tear on June 9, 2022.

On July 19, 2022, the employer provided a written offer to the worker for the new position in Province X that the worker accepted and signed on July 20, 2022. The worker relocated and began the new position with the same employer on August 3, 2022. Correspondence from the employer dated August 10, 2022 verified that there was no ongoing wage loss effective August 3, 2022. The worker was terminated effective August 26, 2022. The worker contacted the Workplace Safety and Insurance Board (WSIB) on September 22, 2022 to advise that they were still having physical restrictions at the time of termination. A Case Manager’s decision letter dated October 19, 2022 determined that the employer was under the re-employment obligation when the worker was terminated on August 26, 2022.

The Case Manager’s re-employment decision letter dated November 22, 2022 determined that the evidence did not support that the worker was required to sever the employment in order to accept the position in Province X. The decision letter outlined that the employer did not provide sufficient evidence to support that the worker’s termination was for reasons unrelated to the workplace injury or claim for benefits. The Case Manager provided the estimated penalty amount of $25,053.84 if the employer did not come into compliance. The decision letter confirmed that the worker would also be entitled to LOE benefits from August 26, 2022. The Appeal Readiness Form signed January 18, 2023 requested that the employer’s objection to the decision of November 22, 2022 be resolved as a hearing in writing. The issue is now before me.

AUTHORITY

Workplace Safety and Insurance Act, 1997 Sections 41(11) and 41(13)(a)

Operational Policy Manual

Published

19-02-09 Re-employment Obligations

November 30, 2020

ANALYSIS

I find that the employer is in breach of the 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 requests that the re-employment decision be overturned and the financial penalty be rescinded based on the unique circumstances in this claim.

The employer representative submits that the worker voluntarily left employment in Province Y and was vetted the same as any other external candidate prior to being offered the position in Province X. The written submissions of October 28, 2022 and January 12, 2023 submit that the termination is wholly unrelated to the workplace injury and represents shocking behaviour that violated the company’s Violence and Harassment policy. The argument is present that the employer has provided compelling evidence supporting that the worker’s injury is not a factor with respect to the termination.

Has the employer breached their re-employment obligation?

i) Re-employment conditions

It is my opinion that all three of the required conditions set out in policy are evident in this case for the re-employment threshold.

Policy 19-02-09, Re-employment Obligations, sets out that all of the following three criteria must be met in order to determine if the threshold for the employer’s re-employment obligation 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.

The case record contains the written confirmation of transfer from the worker being a dispatcher in A to B effective October 13, 2020. There is general agreement that the accepted date of accident is October 28, 2021. I observe that the Employer’s Report of Injury dated October 29, 2021 verifies that the worker was hired in July 2020 and that the company has more than 20 employees. On this basis, I find that the second and third threshold conditions are evident.

Turning to the remaining criteria, Policy 19-02-09 verifies that a worker is considered unable to work if the work-related injury results in any of the following:

• Being absent from work;

• Working less than regular hours, and/or;

• Requiring accommodated work that pays, or normally pays, less than regular pay regardless of if the employer reimburses for any actual loss of earnings.

As discussed above, full LOE benefits were paid from November 11, 2021 up until December 6, 2021. I acknowledge that the Return-to-Work Specialist confirms on January 27, 2022 that there are no ongoing issues following modifications to the worker’s job, such as using a headset. Even so, full LOE benefits were paid from the date of the left shoulder surgery on June 9, 2022 up to August 3, 2022. Therefore, I find that the criterion of being unable to work is met as there are clear absences from work due to the workplace injury.

Policy 19-02-09 outlines that the employer’s re-employment obligation starts when it receives notice that a worker is medically able to perform the essential duties of either their pre-injury employment or suitable work. The duration of the re-employment obligation continues until the earliest of two years from the date of injury, one year after the worker is medically able to perform the essential duties of their pre-injury work, or the date on which the worker turns age 65.

In the case before me, the Case Manager documents in the letter of October 19, 2022 that the re-employment threshold is met and that the worker is only able to complete light desk work with the limitation of no lifting more than five pounds. I find that such physical restrictions establish that the worker was fit for the essential duties of the pre-injury job with accommodations as of August 3, 2022. As a result, it is my view that the necessary criteria for the threshold to the re-employment obligation are met and that the obligation continues until the non-inclusive date of August 3, 2023.

ii) Was the termination related to the work injury or claim for benefits?

I am not persuaded that the worker’s termination is unrelated to the workplace injury or any resulting claim for benefits.

The employer representative submits that the employer has provided ample evidence, including witness statements, supporting the reasons for the worker’s termination. The argument is made that the worker’s behaviour towards a female manager was physically intimidating, demeaning, and humiliating in from of both peers and subordinates. The written submission of January 12, 2023 asserts that the company’s Violence and Harassment policy outlines that substantiated occurrences may involve discipline up to and including dismissal. In the employer representative’s view, the employer is not obligated under legislation to prove that they followed the progressive discipline policy prior to terminating the worker.

Section 41(11) provides the authority for the WSIB to determine whether the employer has fulfilled their obligations. Policy 19-02-09 states that the WSIB can examine the circumstances if the worker is terminated while the re-employment obligation is still in effect in order to determine if the termination was related to the work-related injury and represents a breach of the employer’s obligation. Employers can provide evidence to demonstrate that the termination was not caused in any part by the work-related injury and related absences from work, treatment for the work-related injury, or the claim for benefits.

The employer representative’s verbal discussion with the Case Manager on September 28, 2022 indicates that the worker’s new job in Province X as a Location Manager resulted in earnings greater than pre-accident. The employer representative indicates that the worker was let go due to an employment-related issue. The worker’s verbal statement of October 4, 2022 explains that they moved out of province to work in a more suitable job in administration as they were no longer able to drive the bus following shoulder surgery. During this conversation with the WSIB, the worker denies being aware of any performance issues. The worker’s verbal statement of October 5, 2022 indicates that they received no warning or indication that there were any performance issues.

I note that on October 21, 2022, the Case Manager verbally informs the employer representative that the legislation for dismissal within the probationary period is not the same as the applicable legislative authority for the re-employment obligation. I have paid particular attention to the employer representative’s submission of October 28, 2022 that summarizes the following concerns:

• The Area Manager began to receive complaints about the worker shortly after they began the new position;

• A number of staff threatened to quit due to the worker being rude and difficult to deal with; and,

• The worker demonstrated not being capable of completing the essential duties of the role, including mismanagement of payroll, resulting in a no-pay situation and/or improper pay for staff.

I acknowledge that the written submission of October 28, 2022 encloses statements documenting the worker raising their hand to an employee’s face in front of staff and telling the employee to stop talking. The statements also reference the worker yelling and berating the Assistant Location Manager who felt threatened when no one was around. According to the documentation, the worker often spoke poorly and aggressively to other female individuals and did not respond in a timely manner to employees who were trying to contact them with pay or administrative issues.

In summary, the employer representative argues that the worker chose to apply for the Location Manager Position in a different province for a job that is not physical in nature. The employer representative maintains that it was the worker’s behaviour, not any physical limitations, that made them a bad fit for the job. In particular, the submission highlights the written statements describing the worker as being rude and specifically inappropriate to female staff.

I recognize that the Employee Handbook outlines the process of progressive discipline while retaining the employer’s right to terminate at-will at any time. Regardless, I find that the employer did not follow their internal policies when terminating the worker’s employment. Specifically, I observe that the Workplace Harassment and Violence Prevention policy states that the employer is responsible for ensuring that the policy is applied in a timely, consistent and confidential manner.

Importantly, I observe that this internal policy requires the employer to be responsible for determining what corrective action is appropriate when a harassment complaint has been investigated and substantiated. Further, managers are to be responsible for taking appropriate action during a workplace harassment and violence investigation. The policy sets out the procedures for addressing a harassment complaint, including provide a letter detailing the allegations. In the case before me, I find that there is insufficient evidence of any formal investigation taking place or the worker being provided with a letter detailing the allegations prior to termination.

Similarly, I am aware that the employer’s Unlawful Workplace Discrimination and Harassment policy includes verbal aggression. Yet, this document goes on to list the investigator’s responsibilities including conducting interviews and analyzing information. The internal policy states that if harassment is found, the investigator is to assist in the resolution process by recommending an appropriate remedy. With respect to accurate books and records, the employer’s Code of Business Conduct references audits and inquiries conducted at the direction of Ethics and Compliance, Internal Audit Department, Legal Department, or the Board of Directors. That being said, I find that there is insufficient evidence of a formal audit or inquiry result from any of these areas clearly identifying the payroll mismanagement cited by the employer.

Therefore, it is my opinion that the employer did not follow internal policies requiring a formal investigation, a letter detailing the allegations against the worker, or the formal result of an audit prior to the termination of the worker’s employment on August 26, 2022. Consequently, regardless of any progressive discipline, I am not persuaded that the termination during the employer’s re-employment obligation is unrelated to the workplace injury of October 28, 2021. As a result, after a careful review of the circumstances, I find that there is a breach of the re-employment obligation as defined under Policy 19-02-09 and that a re-employment penalty is in order.

Policy 19-02-09 discusses that re-employment payments or LOE benefits may be paid to the worker if there is a breach of the re-employment obligations, depending on the worker’s level of fitness for work. Section 41(13)(a) and Policy 19-02-09 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. Policy clarifies that this penalty is applied as of 10 calendar days after the date of the written notice. The penalty may be reduced if the employer subsequently offers suitable work.

In this situation, the worker’s termination began August 26, 2022 while the re-employment obligation continues to the non-inclusive date of August 3, 2023. The re-employment penalty would come into effect 10 calendar days after the decision letter of November 22, 2022, or December 2, 2022. Given these factors, I accept that the penalty would represent net average earnings for remaining weeks in the obligation period provided the employer does not come into compliance by December 2, 2022. As the Case Manager’s decision letter of November 22, 2022 only provides an estimate of the penalty and there is no final decision on the matter dating after December 2, 2022, I make no findings with respect to the actual amount of the re-employment penalty or if the employer partially or fully complied by December 2, 2022.

CONCLUSION

I conclude that the employer is in breach of the re-employment obligation.

A re-employment penalty is in order if the employer does not come into compliance by December 2, 2022.

The employer’s objection is denied.

DATED April 26, 2023

K. MacMillan Appeals Resolution Officer Appeals Services Division