Employer Dodges Penalty After Failing to Adhere to Re-Employment Obligations

• Author: Marie-Yosie Saint-Cyr, First Reference Managing Editor
• Date: July 13, 2017

The Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently addressed if and when a penalty should be imposed on an employer who failed to adhere to their re-employment obligations when it comes to employees who get hurt on the job. In this particular case, the Panel decided that a re-employment penalty would not be imposed on the employer, in part because the worker’s conduct played a substantial role in the termination of his employment.

Background

The worker was employed as a heating, ventilation, and air-conditioning service technician/mechanic. The employer was engaged primarily in construction. The worker was labeled a construction worker.

Just a little under a year of being employed with the employer, the worker was involved in a workplace accident.

The Workplace Safety and Insurance Board (WSIB) accepted the claim and the worker received loss of earnings (LOE) benefits from May 7-20, 2007. The worker returned to modified duties with the employer performing office-related tasks.

On February 7, 2008, the employer terminated the employee for cause, citing gross insubordination.

Per the worker, the employer had breached its re-employment obligations.

The WSIB case manager concluded that the evidence supports that the termination was not due to the work-related injury or the WSIB claim for benefits and adds,

Legislation indicates that once a worker returns to work after recovering from a workplace injury, the employer must keep the worker employed for at least six months. If the worker is terminated within the six-month timeframe, we assume that the worker was let go due to the injury unless the employer can prove that the termination was not due to the work-related injury or the claim for WSIB benefits.

Employers can rebut the presumption if they can show that the failure to re-employ, or the termination within six months of re-employment, was not caused in any part by the injury, or the claim for WSIB benefits.

The worker appealed the case manager’s decision.

The WSIB Appeals Resolution decision

The WSIB Appeals Resolution Officer (ARO) first had to decide whether this case should be adjudicated under the construction regulations, and if so, which construction regulations applied (1992 or 2008).

“Section 54(9) of the pre-1997 Act and O. Reg. 259/92 apply to determine a construction industry employer’s re-employment obligations. Section 41(8) of the WSIA provides for regulations concerning construction industry employers, and...