Employer v. Worker, 2025 CanLII 111685

20250043

REPRESENTED by:

HEARD by:

DATED:

MARCH 24, 2025

ISSUE

The employer representative, on behalf of the employer, is objecting to the Case Manager’s decision of December 15, 2023 (reconsidered and upheld on November 8, 2024) that found the employer to be in breach of their re-employment obligation and liable to pay a penalty.

BACKGROUND

On March 23, 2023, this ironworker was attempting to move a piece of checker plate up and out of the installed place with a piece of wood. As the worker was hitting the wood with a hammer, they felt a sudden onset of pain in their right elbow and upper arm. Initial entitlement to a right biceps strain and right lateral epicondylitis was granted within a Case Manager’s decision letter dated April 11, 2023. The employer provided a written offer of modified duties on June 19, 2023. The worker returned to modified duties on June 21, 2023 before experiencing a temporary worsening on June 26, 2023. The employer informed the worker on September 13, 2023 that there was no available work. The worker notified the employer on September 14, 2023 that they had other work starting on September 18, 2023 which they accepted as the employer indicated not having work for them.

A Functional Abilities Form (FAF) dated September 15, 2023 confirmed that the worker was capable of returning to full duties with no restrictions. The employer’s email to the worker on the same date enquired if the worker was intending to take the other job or return to work with them. A decision letter dated September 19, 2023 stated that the right bicep injury resolved on June 22, 2023 and that the medical reporting of September 15, 2023 confirmed full recovery for the right elbow with no ongoing restrictions. The Case Manager accepted that maximum medical recovery (MMR) had been reached effective September 15, 2023 with no permanent impairment.

The worker was terminated by the employer on October 6, 2023. The Case Manager’s letter dated

October 24, 2023 verified that the presumption of a breach of the employer’s re-employment obligation applied as the termination was within six months of the worker’s return to work. The decision letter of

December 15, 2023 determined that there was insufficient evidence to dispel doubt that the workplace injury or claim for benefits was unrelated to the termination. The Case Manager explained that the estimated penalty could be avoided if the employer offered to re-employ the worker and/or contact the Case Manager to begin return-to-work discussions by December 25, 2023. The decision letter also determined that the worker was entitled to re-employment benefits from October 6, 2023.

The re-employment obligation ended on September 15, 2024. The Case Manager’s reconsideration letter of November 8, 2024 clarified that the worker’s entitlement to re-employment payments (loss of earnings benefits) ended on September 15, 2024 and that the employer’s penalty remained unchanged and represented the 37-week period of December 25, 2023 to September 15, 2024. The administrative decision of November 14, 2024 determined that the employer’s objection to the re-employment decision of December 15, 2023 would be addressed as a hearing in writing. The issue is now before me.

AUTHORITY

Workplace Safety and Insurance Act, 1997 Section 41(8) and (11)

Operational Policy Manual

Published

19-05-02 Re-employment Obligation in the Construction Industry - Threshold, Duration and Specific Employer Requirements

19-05-03 Compliance with the Re-employment Obligation – Construction Industry

19-05-04 Re-employment Penalties and Payments – Construction Industry

April 9, 2021

January 2, 2015

April 9, 2021

ANALYSIS

I find that there is a breach of the employer’s re-employment obligation. My reasons for this determination 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 a re-employment penalty should not have been levied as the termination was the result of poor performance/work quality and repeated acts of insubordination which were not a violation of the re-employment obligation.

It is the employer representative’s position that Workplace Safety and Insurance Appeals Tribunal (WSIAT) case law establishes that the appropriate test is if the evidence shows on a balance of probabilities that the termination of employment was not related to the injury. The written submission of October 22, 2024 argues that the employer’s reason for termination was wholly unrelated to the injury, treatment of the injury, and/or claim for benefits.

The employer representative presents that there is no legal requirement to engage in progressive discipline or provide an employee with an opportunity to improve their behaviour. Still, the argument is made that the worker was given an opportunity to improve their performance but instead repeated swore at the foreman and was insubordinate. The employer representative highlights that the employer

investigated the worker’s complaint regarding the alleged safety incident involving the backing up of a

trailer on September 27, 2023 and that the foreman received a written warning. The employer representative stresses that the worker was not terminated due to this complaint which was still unrelated to the injury, the treatment for the injury, or the worker’s claim for benefits.

If the employer’s appeal is successful, the employer representative requests that it be determined that there is no breach of the re-employment obligation, and that the employer is not liable to pay the penalty.

Worker representative’s position

The worker representative is seeking a determination that the evidence establishes that the employer breached their re-employment obligation.

The written submission of January 31, 2025 argues that the employer demonstrates an inconsistent application of workplace policy, as well as an unreliable history of actions around their employee’s performance. The worker representative submits that there is a lack of direct evidence to rebut the presumption that the termination may be related to the claim.

It is the worker representative’s position that the decision of December 15, 2023 should be confirmed.

Is the employer in breach of their re-employment obligation?

It is my opinion that there is insufficient evidence to rebut the presumption that there is a breach of the re-employment obligation.

The employer representative argues that on September 27, 2023 the worker aggressively confronted and swore at a foreman resulting in a written warning on October 5, 2023. The worker was then aggressive with the foreman about taking too long a break resulting in another written warning. The employer representative points out that a third written warning dated October 5, 2023 relates to the worker’s

poor-quality installation of a railing. The employer representative discusses the worker’s failure to wear a harness and swearing at the foreman when told to get off the unsafe stairs. The written submission of October 22, 2024 summarizes that the worker was found multiple times a day playing on their phone instead of working, failing to follow the foreman’s instructions, and swearing at the foreman. The employer representative submits that on October 6, 2023, or the day after receiving the written discipline, the worker continued with inappropriate behaviour when the foreman told them about the quality issue.

Briefly, it is the employer representative’s position that the worker was demonstrably unwilling to improve their performance and behaviour or follow instructions. According to the employer representative, it is nonsensical for the worker to contend being unaware that their performance was unacceptable based on what was communicated to them, their training, and their experience as an ironworker. The argument is raised that it is irrelevant that the worker did not sign the Employee Disciplinary Reports when assessing if the employer violated their re-employment obligation. Rather, the employer representative maintains that none of the incidents had any thing to do with the injury, treatment, or claim for benefits. The employer representative stresses that it has not been alleged that the worker’s poor performance was the result of the injury and that the FAF indicates the ability to return to pre-injury duties with no restrictions. Finally, the employer representative notes that the union did not grieve the worker’s termination.

In contrast, the worker representative points out that the union became involved in this claim very early and were informed by the worker that they were not requesting the union to grieve the termination as they were pursuing the re-employment issue with the Workplace Safety and Insurance Board (WSIB). The worker representative further argues that a grievance would have been “redundant venue shopping”.

Section 41(8) outlines that employers engaged primarily in construction shall comply with such requirements as may be prescribed concerning the re-employment of workers who perform construction work. The application of this subsection is not contingent on the length of a worker’s continuous employment. Section 41(11) provides the authority for the WSIB to determine whether the employer has fulfilled their obligations.

Policy 19-05-02, Re-employment Obligation in the Construction Industry - Threshold, Duration and Specific Employer Requirements, requires construction employers to offer to re-employ their injured construction workers who have been unable to work due to a work-related injury. The obligation to re- employ begins when the employer is notified that the injured construction worker is medically able to perform the essential duties of their pre-injury job, suitable construction work, or suitable non-construction work. Following notification, the employer must offer to re-employ the injured worker in the first job that becomes available that is consistent with the worker’s medical ability to return to work. Policy 19-05-02 defines the term suitable work in part as post-injury work that is safe, productive, and consistent with the worker’s functional abilities.

The obligation to re-employ continues until the earliest of:

Two years from the date of injury;
One year after the worker is medically able to do the essential duties of the pre-injury job;
The date the worker declines an offer of work; or,
The date the worker reaches age 65.

Policy 19-05-03, Compliance with the Re-employment Obligation – Construction Industry, requires the WSIB to ensure that construction employers have fully complied with their obligation to offer to re-employ construction workers who, as a result of a work-related injury, have been unable to work. If a construction employer terminates an injured construction worker’s employment within six months of having

re-employed them, the WSIB presumes that a breach of the re-employment obligation has occurred. Policy clarifies that the employer can rebut the presumption by showing that the termination of the worker’s employment was not caused in any part by either the work-related injury, related treatment, or the claim for benefits.

In order to determine compliance with the re-employment obligation, Policy 19-05-03 requires consideration of if the worker has met the “unable to work” threshold, that the worker is medically able to return to work and the employer has been notified of their level of fitness, and the re-employment obligation is still in effect. Decision-makers are then to consider whether the employer has offered employment consistent with the worker’s ability to return to the pre-injury job, suitable construction work, or suitable work other than in construction as part of an ongoing responsibility to offer the most similar work to the pre-injury job when it becomes available. Employers may provide relevant evidence to rebut the presumption under Policy 19-05-03 by providing documentation not limited to company policy or established company practices. No re-employment penalty is applied and the worker is not entitled to

re-employment payments if the employer successfully rebuts the presumption.

In this case, the employer representative confirms the employer’s acknowledgement that it had a duty to re-employ the worker which runs for the period from September 15, 2023 to September 15, 2024. I observe that correspondence from the employer dated September 20, 2023 confirmed that an official written offer of work would be sent to the worker on September 21, 2023. The worker resumed regular duties on September 22, 2023. There is general agreement that the termination of October 6, 2023 falls within the applicable six-month window.

There is also general agreement that on September 27, 2023 the worker reports an incident involving a foreman backing up a trailer which involved some sort of verbal altercation between them. The worker

informs the employer on September 28, 2023 that they were not feeling well and would not be coming in to work. On October 2, 2023, the worker raises a question about a start time. The case record contains four Employee Disciplinary Reports dated October 5, 2023 involving the worker which all occur on September 27, 2023. Separate Employee Disciplinary Reports also dated October 5, 2023 are completed for the trailer incident of September 27, 2023 with respect to the foreman and another person.

I am aware that a separate person emails the employer at 12:43 PM on October 6, 2023 raising concerns with the worker’s quality of work and behavioural issues. The employer emails the worker at 5:02 PM notifying that they were being paid off effective immediately. The employer’s email to the worker explains that concerns were raised by multiple individuals, and that there had been an investigation of the incident on September 27, 2023. A separate Employee Disciplinary Report is completed for an incident of October 6, 2023 at 1:00 PM resulting in termination. A signed statement from the employer dated November 3, 2023 states that they had not received any grievances for wrongful termination, that none had been filed with the union, and that the final date for grievance acceptances is October 26, 2023. A separate written statement from the employer dated November 3, 2023 indicates that they had not been required to terminate any employees for the actions of workplace harassment, absenteeism/tardiness, improper conduct or substandard performance.

When reviewing the employer-provided documentation, I accept that the requirement of Article 6 is met as the employer has provided reasons for the termination. I recognize that Appendix D (Ironworkers’ Standards of Excellence) outlines attempting to treat all co-workers with respect, as well as working in a consistent manner with the quality, productivity, and safety of every task assigned. I acknowledge that the Violence and Harassment Policy confirms that workplace harassment will not be tolerated from any person, while the Violence and Harassment Program confirms that workplace harassment includes making remarks that intimidate or offend. Similarly, the Workplace Party Responsibility Policy requires the use or wearing of equipment, protective devices, or clothing required. The internal policy states that no worker shall work in a manner that may endanger themselves or any other worker.

While I appreciate the employer representative’s argument that there is no legal requirement for progressive discipline or to provide an opportunity to improve behaviour, I cannot ignore that the General Safety Rules Policy contained in the case record states that failure to comply with any policies/procedures will result in the application of the Progressive Discipline Procedure as follows:

Step 1: Verbal warning with the employer providing corrective action to the worker;
Step 2: Written warning using the Written Discipline Form while will outline any corrective action and timeframes for compliance; and,
Step 3: If the worker does not comply with the corrective actions measures, a suspension or termination will occur. This step will be documented on a Discipline Form.

Keeping the above-noted material in mind, I find that there are irregularities between the Employee Disciplinary Reports for the worker compared to those issued to the foreman and other employee. Again, there are four Employee Disciplinary Reports all dated October 5, 2023 for written warnings to the worker relating to incidents occurring on September 27, 2023. These incidents relate to improper conduct, substandard performance, and absenteeism/tardiness. However, unlike the steps outlined within the Progressive Discipline Procedure, none of these four Employee Disciplinary Reports include a corrective plan or any timeframes for compliance. Moreover, none of the four reports are signed by a supervisor. By comparison, the Employee Disciplinary Report of October 5, 2023 for the foreman and other employer both provide a corrective plan/action. Moreover, these two reports are signed by both the individual and the supervisor on October 9, 2023, which I note is three days after the worker’s termination.

I find it material that the fifth Employee Disciplinary Report dated October 6, 2023 documenting the worker’s termination for substandard performance and improper conduct is not signed or dated by the

supervisor. The worker’s email to the employer at 5:30 PM on October 6, 2023 indicates that no foreman ever said anything to them about quality of work or other issues. The worker’s email states that their termination is a surprise as they would have corrected any issues brought forward.

For these reasons, I accept on a balance of probabilities that the worker did not receive any of the four Employee Disciplinary Reports prior to being terminated on October 6, 2023. In my view, the employer’s obligation to re-employ is separate and distinct from the issue of if the union grieved the worker’s termination. It is my opinion that there are documented irregularities between the Employee Disciplinary Reports for the worker compared to those issued to the foreman and other employee. In my view, there is insufficient evidence to establish that the first four Employee Disciplinary Reports were completed prior to the worker’s termination as the two issued to the foreman and other employee are not signed by either of them or the supervisor until October 9, 2023.

Therefore, I find that the employer has not successfully rebutted the presumption that the worker’s termination of October 6, 2023 was not caused in any part by either the work-related injury, related treatment, or the claim for benefits. Consequently, and in keeping with Policy 19-05-03, I find that the presumption is applicable that a breach of the employer’s re-employment obligation has occurred.

Penalty

I find that there is insufficient evidence to change the Case Manager’s calculation of the penalty for the period from December 25, 2023 to September 15, 2024 (non-inclusive).

Policy 19-05-04, Re-employment Penalties and Payments – Construction Industry, outlines that when construction employers do not fulfill their re-employment obligations, the WSIB may levy a penalty up to the worker’s net average earnings in the year prior to the injury. The WSIB may also may payments to the worker for up to one year as if the worker was entitled to payments for loss of earnings.

The Case Manager’s decision letter of December 15, 2023 outlines that the estimated penalty would be calculated as the weekly net average earnings x the number of weeks remaining in the re-employment period. The reconsideration letter dated November 8, 2024 confirms that there is no change to the penalty applied to the employer’s account. Policy 19-05-03 verifies that the date of the written notice comes into effect is ten calendar days (not business days) after the date that appears on the written notice. I observe that the Case Manager’s decision of December 15, 2023 explains that the penalty will come into effect as of December 25, 2023. There is general agreement that the re-employment period ends effective September 15, 2024. As a result, I find that the re-employment penalty is applicable for the non-inclusive period of December 25, 2023 to September 15, 2024.

CONCLUSION

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

The presumption that the termination of employment on October 6, 2023 is unrelated to the workplace injury, treatment, or claim for benefits has not been rebutted.

The calculated penalty for the period of December 25, 2023 to the non-inclusive date of September 15, 2024 is confirmed.

The request for a determination that there is no breach of the employer’s re-employment obligation and that the employer is not liable to pay the penalty is denied.

The employer’s objection is denied.

DATED MARCH 24, 2025

K. MacMillan

Appeals Resolution Officer Appeals Services Division