APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20250064

OBJECTING PARTY:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

RESPONDENT PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

HEARING:

VIDEOCONFERENCE – MARCH 4, 2025

HEARD by:

T. LIM, APPEALS RESOLUTION OFFICER

ADDITIONAL ATTENDEES:

DATED:

WITNESS FOR THE EMPLOYER

RESOURCE PERSON WITH THE EMPLOYER

OBSERVER WITH THE EMPLOYER REPRESENTATIVE

APRIL 8, 2025

ISSUE

The Employer objects to the Case Manager (CM) decision dated June 21, 2023, which found that the Employer breached their re-employment obligation

BACKGROUND

The Employer hired the Worker in August 2019.

On and around October 19, 2021, the Worker, a full-time Shipper/Picker at a warehouse, sustained injuries to their arms at work. The Workplace Safety and Insurance Board allowed the claim for Health Care and Loss of Earnings (LOE) benefits, inclusive of several surgeries, the last two of which were on November 18, 2022 (right) and June 9, 2023 (left).

The Worker was off work because of their injuries at various times following the accident. On January 6, 2023, the Worker stopped working as part of a temporary staff layoff due to a shortage of work. They returned on January 30, 2023.

On April 5, 2023, the Employer terminated the Worker’s employment.

In the decision of June 21, 2023 (reconsidered and upheld on September 13, 2023), the CM found the Employer in breach of their re-employment obligation. The CM found that the Employer had an ongoing obligation to re-employ the Worker at the time of termination, and they terminated the Worker’s employment for reasons related to the workplace injury. The Employer objected to that decision and the issue was forwarded to the Appeals Services Division (ASD).

The oral hearing took place by video conference on March 4, 2025. The Worker and the Employer’s witness testified. At and around the time of the Worker’s employment termination, the Employer’s witness was a Director of Operations.

The Employer’s Position

The employer representative submitted an Appeal Readiness Form (ARF) dated September 23, 2024 along with a nine-page explanation. At the oral hearing, they expanded on their position, which can be summarized into two main conditional arguments. First, they assert that the Employer did not have a re- employment obligation by the time of the Worker’s termination of employment. Second, if the WSIB finds that the Employer did in fact have that obligation, then they contend that the Employer terminated the Worker’s employment for reasons unrelated to the workplace injury. The employer representative also argued that the Worker was not credible, and they questioned the truthfulness or accuracy of their testimony and reports on file.

The employer representative argued that the Employer did not have a re-employment obligation by the date of the Worker’s termination because it had been more than one year since the Worker was medically able to perform the essential duties of their pre-injury work. As per policy 19-02-09, the injury employer is obligated to re-employ the worker 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 reaches 65 years of age.

The second bullet point applies in this case, and the one-year mark was exceeded, according to the employer representative. They assert that the Worker was able to perform the essential duties of their pre-injury work by October 21, 2021 (i.e. just after the accident date) or by December 2021. The one-year mark would be October 21, 2022 or December 2022 and the Worker’s employment was terminated in April 2023. Hence, the Employer was not in breach of their re-employment obligation. The employer representative said that the WSIB memos, the medical information on file, and the Worker’s testimony show that the Worker was performing the essential duties of their pre-injury job by said dates. The threshold for the one-year timeframe does not require a full recovery. There was no recurrence and therefore there should be no reset to the re-employment obligation time limits.

Otherwise, the employer representative argued that if the WSIB finds that the Employer had an ongoing re-employment obligation at the time of the Worker’s termination, then they submit that the Employer carried out said termination for reasons unrelated to the workplace injury. They underscored that the CM, in arriving at their decision, erroneously focused on discrediting the Employer’s evidence, or on demonstrating that the Employer did not follow their own employment policy and procedures as it relates to disciplining and terminating the employment of the Worker and other staff. However, the Act and policy state that the decision should turn on the question of whether there was an anti-injured-worker animus, which is to say, whether their action was motivated by the Worker having made a claim for a workplace injury. In that regard, the Employer has provided ample evidence to show that they did not.

The employer representative continued on that point, stating that the Worker contravened various sections of the Employer’s attendance and anti-harassment policies. The Employer provided numerous evidentiary documents in support of their claim, including attendance records, disciplinary documents, meeting notes, and witness statements.

As well, there was no presumption of breach, as section 41 of the Act and the applicable policy contemplates, since the criterion related to a termination within six-months of re-employment does not apply this this case. The onus was not on the Employer to prove their case.

The employer representative argued that the testimonies of the Worker and the Employer’s witness support the Employer’s position. Notably, the Worker testified that the Employer had made them aware of their repeated attendance issues. The Employer’s witness, who was in a relevant management role at the time of the Worker’s employment termination, attests to the Employer’s reason for the termination, which they said was unrelated to the Worker’s injury, despite the Employer having issued to the Worker a letter of termination without cause.

Finally, the employer representative argued that the Worker’s testimony and reports on file show that the Worker is not credible. There were numerous inconsistencies in the Worker’s testimony compared to reports on file. Given the Worker’s lack of credibility, more weight should be placed on the Employer’s witness statements than the Worker’s testimony. And a measure of doubt should be directed towards the accuracy of the Worker’s reports and testimony.

I have interspersed portions of the Employer’s witness’ testimony within my analysis below, where appropriate. I note that the Employer’s witness testified that they were familiar with the Worker and their injury claim directly and indirectly through reports from facility managers and Human Resources. They said they played the main role in deciding to terminate the Worker’s employment because they were the most senior decision-maker at the time.

The Worker’s Position

At the oral hearing, the worker representative confirmed their decision to withdraw from the appeal agenda the Worker’s objection to the CM decision of September 29, 2023, which denied the Worker ongoing entitlement. This was in light of a new CM decision dated February 7, 2025, which allowed ongoing entitlement.

With regard to the remaining issue regarding the Employer’s obligation to re-employ, the worker representative submitted that the CM’s decision in question should be confirmed – namely, that the Employer breached their re-employment obligation. The Employer had an ongoing re-employment obligation in effect at the time of the Worker’s termination, in large part due to the Worker’s ongoing impairment and inability to return to their pre-injury duties. The evidence on file and the Worker’s testimony support the CM’s decision finding the Employer in breach of their re-employment obligation. The Employer witness’ testimony did not sufficiently demonstrate that the Employer terminated the Worker’s employment for reasons unrelated to their work-related injury.

The Worker’s testimony compliments the evidence on file in showing that the Worker was highly accommodated and self-modifying their job duties when they returned to work. At no time prior to the employment termination was the Worker medically able to perform the essential duties of their pre-injury work. They underwent four surgeries, the last one being in November 2022. Their having obtained a forklift license after the accident, to assist with their return to work, is one example of an accommodation because of their lifting restrictions related to the workplace injuries. As such, the two-year timeframe from the date of injury, as per the policy, obliging the Employer to re-employ, is applicable in this Worker’s case, not the one-year timeframe from the date of being able to return to the essential duties of the pre- injury job, as the employer representative has submitted.

Turning to the question of whether the Employer terminated the Worker’s employment at least in part because of their WSIB claim, the worker representative submits that the Employer’s behaviour

demonstrated a prejudice against the Worker after the workplace accident and particularly when the Worker’s recovery proved to be protracted and not expected to be achieved in the foreseeable future. The inconsistencies in the Employer’s statements and behaviour are a reflection of this position.

For example, the Employer terminated the Worker’s employment after having warned the Worker about the need to improve their attendance, and the Worker did in fact improve and did not have any further attendance issues after said warning. As well, the Employer claimed that the Worker harassed other staff members and contributed to a toxic work environment, but there was no related contemporaneous documentation that the Employer could provide in that regard, and the veracity of such claims are refuted by the Worker. The Employer witness testified that they terminated the Worker’s employment as part of a larger, more general move to improve a department that had become unproductive for various reasons, including due to a number of staff who were contributing to a toxic work environment, the Worker among them. However, the worker representative observed that the Employer’s witness had indicated that the others who were terminated had been coached prior to their termination, but the Worker was not coached on such matters. The only documentation on file of the Worker’s failure to perform their job duties appropriately was related to attendance issues, and as noted, the Worker corrected said issues prior to their termination.

The employer representative rebutted the worker representative’s arguments, which I will discuss further below. Briefly, I note that the employer representative underscored the notion that coaching and/or documentation of such is not required with respect to the issue at hand. Rather, does the overall evidence show that the Employer had an anti-injured-worker animus? There is ample evidence that shows that no, they did not, according to the employer representative.

The worker representative asks that the CM decision of June 21, 2023 be confirmed.

AUTHORITY

Operational Policy Manual:

Published:

19-02-09 Re-employment obligations

November 30, 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I have determined that the Employer’s objection is denied. I find that the Employer breached their re-employment obligation when they terminated the Worker’s employment effective

April 5, 2023. A re-employment penalty was appropriately levied against the Employer. The CM’s decision is confirmed.

My reasons are as follow.

Policy 19-02-09 Re-employment obligations states in part: Re-employment conditions

Injury employers have an obligation to re-employ their workers if the following three conditions are satisfied:

• the worker has been “unable to work” as a result of the work-related injury/disease

• the worker was continuously employed with the injury employer for at least one year before the date of injury, and

• the injury employer regularly employs 20 or more workers. […] Re-employment obligation

If the re-employment conditions as outlined above have been met, an injury 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.

Notice may be provided to the injury employer by the worker, the worker's treating health professional(s), and/or the WSIB.

Duration of re-employment obligation

The injury employer is obligated to re-employ the worker 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 reaches 65 years of age.

The earliest applicable date may change if there is an improvement or deterioration in the worker’s level of impairment (e.g., worker has a recurrence and moves from being fit for essential duties to only being capable of suitable work). […]

In this case, there was no dispute amongst the workplace parties with respect to whether the three re-employment conditions were met, namely:

• the worker has been “unable to work” as a result of the work-related injury/disease

• the worker was continuously employed with the injury employer for at least one year before the date of injury, and

• the injury employer regularly employs 20 or more workers. […]

Turning to the question of the re-employment obligation, I will address the Employer’s two conditional arguments in turn, starting with the time limit of the re-employment obligation, followed by whether the Worker’s termination of employment was in any way related to the compensable injury.

i) Re-employment obligation until which day?

The employer representative argued that, of the three possible scenarios presented in the policy, which dictates how long the Employer remains obligated to re-employ the Worker, namely:

• 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 reaches 65 years of age.

the second scenario applies in this case. The employer representative argued that the Worker was able to perform their essential duties of their pre-injury work by October 21, 2021 or December 2021. This means that the Employer’s obligation to re-employ ended by October 21, 2022 or December 2022.

I do not agree that the second bullet point applies in this case. Rather, the first bullet point is applicable – that is, two years from the date of injury, which is the position of the CM. This means that the Employer’s obligation to re-employ ended on October 19, 2023. I find this to be the case because the Worker was not able to perform the essential duties of their pre-injury work by October 21, 2021 and ongoing at least until October 19, 2022.

I highlight the following:

• The accident date was October 19, 2021. The WSIB initially paid the Worker LOE benefits until October 22, 2021. The Worker did not receive any LOE benefits again until

May 24, 2022. While the WSIB did not pay the Worker LOE benefits during the above-noted period between October 2021 and May 2022, I find that they were not medically able to perform the essential duties of their pre-injury work.

• According to a return-to-work (RTW) meeting memo dated January 6, 2022, the following physical demands were attributed to the Worker’s regular duties as a Shipper/Picker:

o Tasks vary from ground-waist-shoulder with rare above shoulder and vary from close to body (elbow bent) to straight in front or lateral reaching (elbows straight) with constant power gripping and pinching to handle boxes, tape, label boxes.

o Boxes of weight varies from 1lb (rare) with up to 41.81lbs

o Lift, carry (<5ft) and place boxes off the conveyor onto a skid approx. 28boxes/skid and approx. 15-25 skids per day; operate pump cart with button (not required to push) however bilateral arms to steer.

• According to a memo dated November 12, 2021, the Worker returned to work at part-time hours on October 21, 2021. The Employer advised that the Worker provided them with a medical Form 26 (Health Professional’s Progress Report) completed on November 9, 2021. The form indicated that the Worker was unable to lift with their left arm. There would be about a 6-week recovery time.

A main component of the Worker’s essential duties is to lift objects with both arms. In my view, if they were unable to lift with the left arm, then they were not medically able to perform the essential duties of their pre-injury work.

• A physiotherapist’s report dated December 16, 2021 recommended that the Worker return to work performing modified duties. The physiotherapist indicated that the Worker should not return to their regular duties for another 4-8 weeks. The physiotherapist identified the Worker’s “repetitive demands [of] pre-injury job” as a factor that may delay the Worker’s recovery or return to work. They also referenced a number of physical demands of the Worker’s job in order to justify their assessment of the extent of the Worker’s impairment.

In my view, the physiotherapist considered the Worker’s pre-injury duties versus modified duties when making their recommendations, and they concluded that the Worker was unable to return to their regular duties and able only to return to modified duties. This supports that the Worker was unable to perform the essential duties of their pre-injury work.

• A Functional Abilities Form (FAF) dated January 5, 2022, completed by the Worker’s physiotherapist, recommended a return to work with restrictions. It indicated that the Worker had full abilities except

with lifting, which was to be limited to 40 pounds, and gripping with the left hand, which was to be limited in general.

• As per a memo of a RTW meeting held on January 6, 2022, with the Worker, Employer, and WSIB RTW Specialist in attendance, the Worker was performing about 1 hour in the Shipper role, and 3 hours on “modified work.” Modified work included staging orders, labelling and taping boxes, and collecting boxes to recycle. The ratio of Shipper to modified work was expected to shift to more hours as Shipper progressively from January 17, 2022 onward.

I note that a significant portion of the Worker’s workday was performing modified duties.

• The Worker attended a WSIB Upper Extremity Specialty Program – Comprehensive Assessment on January 13, 2022. The report provided a diagnosis of repetitive strain injury for both elbows and recommended functional limitations. The lifting limitations were more restrictive than the aforementioned FAF – lifting was to be limited to between 5 to 10 kilograms (11 to 22 pounds). The assessors also noted that the Worker should limit repeated heavy lifting especially with the arms away from the body. The Worker should grip and pinch (both hands) occasionally only. Of note, a therapeutic steroid injection was offered and accepted.

As indicated above, the Worker’s regular duties requires constant power gripping and pinching to handle boxes, tape, and label boxes. Given the functional limitations as set out in the Specialty Program, especially the recommendation to avoid repetitive gripping and pinching, I find the Worker was not medically able to perform the essential duties of their pre-injury work.

• The Worker’s recommended functional abilities did not change based on a follow-up appointment at the Specialty Program on March 18, 2022.

• In a Specialty Program appointment on May 2, 2022, orthopaedic surgeon Dr Bigham recommended surgery for the left elbow due to a symptomatic unstable ulnar nerve. The WSIB allowed the Worker entitlement for the surgery.

• The Worker underwent left elbow surgery on May 27, 2022.

• There was no indication of significant improvement in their functional abilities between the Specialty Program assessment of March 18, 2022 and the date of surgery. The Worker was not medically cleared to return to work performing their essential duties of their pre-injury job prior to their surgery.

• A Specialty Program report dated June 14, 2022 recommended a return to work performing modified duties. The Worker’s functional abilities were updated to reflect full abilities for left-side lifting, but up to only 11 pounds on the right. As well, surgery on the right elbow was now recommended.

• The Worker underwent surgery on the right side on July 8, 2022.

• A Specialty Program dated October 25, 2022 indicated near full resolution of symptoms in the left arm but a failed surgery on the right side. Lifting limitations were once again limited to 11 pounds on the right side. The Worker had full abilities on the left side. It was recommended that the Worker return to work performing modified duties.

In summary of this section, in accordance with policy 19-02-09, I find the Employer had an obligation to re-employ the Worker up to two years from the date of injury. This is because that date was the earliest of the dates of the three scenarios presented in the policy as to how long the re-employment obligation

was to be in effect. The other two scenarios did not apply in this case because the Worker was not medically able to perform the essential duties of their preinjury work within one year of October 19, 2023, and the Worker had not reached 65 years of age before October 19, 2023. Consequently, I find the Employer had an obligation to re-employ until October 19, 2023.

ii) The Termination of Employment

In my view, the Employer breached their re-employment obligation when they terminated the Worker’s employment effective April 5, 2023, and then did not re-employ them after the WSIB notified them of their failure to meet their obligation and gave them the opportunity to comply, pursuant to the policy.

Policy 19-02-09 Re-employment obligations states in part:

If the worker is terminated while the re-employment obligation is still in effect, the WSIB can examine the circumstances to determine whether the termination was related to the work-related injury/disease and represents a breach of the injury employer’s re-employment obligation.

The WSIB presumes the injury employer has not fulfilled their re-employment obligations when a worker is terminated within six months of being re-employed, and the re-employment obligation is still in effect. Workers have three months to ask the WSIB to investigate non-compliance. If the request is made after three months, the WSIB is not required to investigate, but may choose to do so. The WSIB may investigate on its own initiative at any time.

Injury employers can rebut the presumption by showing that the termination 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. When a rebuttal is successful, the WSIB will not levy a re-employment penalty. However, if the worker continues to experience a loss or earnings due to the injury/disease, they may be entitled to LOE benefits and RTW services.

The Employer provided a number of documents, witness statements, and asked the Director of Operations (the Employer’s Witness) to testify to show that their decision to terminate the Worker’s employment had nothing to do with the Worker’s injury. There are on file Employer documents related to the Worker’s attendance issues, witness statements about the Worker’s misconduct, and the Employer’s witness testified that a combination of the two foregoing issues led to the Employer’s decision to terminate the Worker’s employment. In addition, the Employer provided their employee handbook, which includes company policies on a variety of topics, including attendance issues, terminations, and the disciplinary process. The CM reconsideration decision of September 13, 2023 provided a detailed description of the Employer’s submissions. I will not repeat the submissions in detail here but will refer to them within the context of this analysis, and likewise with respect to the Employer’s witness testimony.

I do not find in favour of the Employer for the following reasons:

o There is no evidence of performance issues or personality issues with the Worker prior to their workplace accident. The contrary appears to be the case during the two years with the Employer prior to the workplace accident – the Worker was a valued employee and was given a pay raise.

o I find there was a temporal relationship between the clinical information reflecting the Worker’s substantial recovery issues and the sudden appearance of multiple Employer concerns over the Worker’s job performance and conduct at work.

o The Employer did not follow their own disciplinary process in relation to the Worker and/or they did not provide the Worker with an opportunity to respond to allegations of misconduct.

o Documentation with respect to the Worker’s attendance issues do not justify a termination based on the wording of said documents. There was a warning to comply, and then the Worker complied, accordingly.

I will expand on each of the foregoing points.

o There is no evidence of performance issues or personality issues with the Worker prior to their workplace accident. The contrary appears to be the case during the two years with the Employer prior to the workplace accident – the Worker was a valued employee and was given a pay raise.

The Worker testified that the Employer never made them aware of any performance or personality issues prior to the workplace accident. They testified that they started with the Employer through a temporary employment agency. The Employer chose them among the many temporary workers to become a permanent employee. The Worker said they remembered receiving one performance review prior to the work accident. They testified that it was a good performance review because they received a raise in pay. They said the performance review indicated that their pay was being raised because they had a good work ethic.

The Worker testified that they did have attendance issues prior to the workplace accident. They testified, “I believe I’ve always had attendance issues that could have been improved.” The Worker testified that they do not remember ever being formally disciplined by the Employer, where it was documented, that they had attendance issues or misconduct prior to the workplace accident.

The Employer’s witness testified that an employee would receive a raise in pay for good performance and that this would be reflected in a performance review of that employee.

There are no documents on file of the Employer taking disciplinary action against the Worker prior to the workplace accident.

o I find there was a temporal relationship between the clinical information reflecting the Worker’s substantial recovery issues and the sudden appearance of multiple Employer concerns over the Worker’s job performance or conduct at work.

All witness statements and disciplinary documentation were dated from mid-2022 and after. These were some time after the workplace accident and coincided with a period when it became clear that the Worker’s recovery was not imminent.

Letters, notes, or emails to the Worker from the Employer dated June 24, 2022, September 30, 2022, October 3, 2022, January 31, 2023, March 17, 2023, with headings such as “Employee Discipline Record,” “First Written Warning” and “Coaching Discussion,” show that the Employer was concerned about the Worker’s repeated tardiness or absences.

Witness statements dated June 2, 2023, July 28, 2023, August 4, 2023, (undated but received to file around) August 28, 2023, and November 21, 2024, recount various examples of the Worker’s misconduct, including bursts of anger, kicking a radio, taking a phone call while on the job, having a tendency to call in sick, especially on Monday, and throwing items.

I note that the Worker’s first and second surgeries were in May 2022 and July 2022. According to a memo dated October 26, 2022, the Worker advised the WSIB that there was ongoing problems with the right elbow and that another procedure was being recommended. They also advised of how they had returned to work after surgery, and it was going well for a while until their workload became “too much”, and they re-injured their arm. They mentioned that they were yelled at in relation to their challenges with performing the work duties.

I observe that there was no documentation of the Employer’s concern related to the Worker’s tardiness or conduct for the two years before the accident and for the few weeks immediately after the accident. Then, after the Worker underwent their first surgery, and their injuries did not appear to be resolving, the Employer had numerous documented concerns related to the Worker’s tardiness and conduct.

o The Employer did not follow their own disciplinary process in relation to the Worker and/or they did not provide the Worker with an opportunity to respond to allegations of misconduct.

The employer representative noted that the test to determine whether the Employer breached their re-employment obligation is to show that the Employer was motivated to terminate the Worker’s employment because of the work-related injury. The test is not whether the Employer followed their own processes or terminated the Worker’s employment without cause or not. While I agree with that assertion, I find that if the Employer did not follow their own process and policies – including stating on the one hand that they were terminating employment without cause, and on the other hand stating that they did so due to issues with tardiness and misconduct – this leaves room to doubt that the Worker’s employment was terminated for reasons unrelated to the work injury, since the stated reasons for termination themselves are in doubt.

The Employer’s Employee Handbook explains the following disciplinary process:

The Business is committed to fair and constructive treatment of unacceptable work performance. To support our employees wherever possible in meeting their responsibilities of their job, the following progressive discipline process will, where appropriate, be carried out with the intent of improving employee behaviour and performance. […]

Progressive Discipline

If an employee’s performance continues to fall short of acceptable standards or if an employee commits a serious initial act of misconduct, such as violating the rules set out in this policy, the manager shall initiate the progressive discipline policy, as explained in detail below.

Step one: coaching

Step two: verbal warning Step three: written warning Step four: dismissal

There is no indication that this four-step process was followed, particularly with respect to the Worker’s alleged misconduct. The Worker appears to have first been presented with the allegations of misconduct (i.e. anger issues, kicking the radio, etc.) at the oral hearing. The Worker testified that they became aware of the formal or documented complaints of their misconduct at the oral hearing.

Furthermore, a letter dated April 5, 2023 addressed to the Worker, with the heading “Termination of Employment,” indicates that the Employer terminated the Worker’s employment “without cause.” It states in part:

This letter is to inform you that your employment with [the Employer] has been terminated without cause, effective April 5, 2023 (the “Termination Date”).

The Worker’s Contract of Employment on file states in part with respect to termination for just cause:

Termination for Just Cause: The Company may terminate your employment at any time for any act or omission that amounts to cause at law, or to wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the Company.

The letter of termination contradicts the Employer’s subsequent statements that they terminated the Worker’s employment due to job performance issues or issues related to misconduct, which would appear to match the criteria for termination for just cause, as per the Contract of Employment, particularly the section referencing:

…wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the Company.

The Employer’s witness testified that they were the main person responsible for the decision to terminate the Worker’s employment. They testified that it was for reasons unrelated to the work- related injury. They testified that the whole department, of which the Worker was part, was unproductive due to various personality issues amongst the employees in said department. As such, a number of employees, for these reasons, had their employment terminated. The Worker was one of these employees.

In testimony, the Worker admitted to having attendance issues – either for being repeatedly late or for calling in sick due to non-medical reasons, such as related to their dog. However, they denied being aware of any behavioural issues. They admitted to getting angry occasionally, but they did not direct this at any person. They denied being aggressive towards any coworker. They denied having been formally disciplined by the Employer for anything but their attendance issues. They testified that they were not aware of any of the witness statements related to their misconduct prior to the oral hearing.

In my view, the Employer gave little opportunity to the Worker to participate in the investigation of allegations of misconduct against them. This lack of transparency in the process that led to the Worker’s dismissal weakens the Employer’s position that they did so for reasons unrelated to the work injury.

In my view, the question at issue turns less on the Worker’s credibility in denying having conducted themselves inappropriately at work, and more on the lack of a fair process in the Employer’s reporting on such misconduct.

o Documentation with respect to the Worker’s attendance issues do not justify a termination based on the wording of said documents. There was a warning to comply, and then the Worker complied, accordingly.

One of the last documents warning the Worker of their tardiness was dated March 15, 2023, entitled “Performance Improvement Plan (PIP),” and near the end of the document, the Worker wrote, “I will try to improve here on out.” It appears the Worker was successful in that regard.

The Employer provided the Worker’s attendance record spanning from the date of hire until the date of dismissal. At various times before and after the date of accident, the Worker punched in late - a few minutes after the start of the hour. This matches their testimony that they have always had challenges with being on time for work. From the date of the PIP until the date of termination, not once were they late.

In my view, the record contradicts the Employer’s statement that they terminated the Worker’s employment for reasons unrelated to the work injury, including due to the Worker’s repeated tardiness. The Employer provided the Worker an opportunity to improve on their issue with tardiness; the Worker took the opportunity and indeed improved to the point of not being late anymore, and yet their employment was terminated anyway.

Policy 19-02-09 states that if the Employer breaches their re-employment obligation, the WSIB may levy a re-employment penalty against the Employer:

Re-employment penalties for employers

When the WSIB is considering levying a re-employment penalty, the WSIB informs the injury employer about their obligation to re-employ the worker, and identifies the specific requirement they are failing to meet, along with the possible penalty for non-compliance. This is done verbally, where possible, and in writing.

If the injury employer remains non-compliant, the WSIB notifies the employer that a penalty is to be levied for a breach of their re-employment obligations. The penalty is applied as of 10 calendar days after the date of the written notice.

If the injury employer breaches their re-employment obligations at different times in the same claim, the WSIB may levy more than one penalty.

In summary, in accordance with policy 19-02-09, I find the Employer breached their re-employment obligation. This is because the evidence shows that they had an obligation to re-employ the Worker until two years from the date of injury, namely October 19, 2023, and yet they terminated their employment before that date, and they did not re-employ. As well, the evidence shows that more likely than not, they terminated the Worker’s employment for reasons related to the compensable injury. Consequently, I find the CM acted appropriately in levying the re-employment penalty against the Employer.

CONCLUSION

I have determined that the Employer breached their re-employment obligation when they terminated the Worker’s employment effective April 5, 2023. A re-employment penalty was appropriately levied against the Employer. The CM’s decision is confirmed.

The Employer’s objection is denied.

DATED APRIL 8, 2025

T. Lim

Appeals Resolution Officer Appeals Services Division