Highlights of Noteworthy Decisions

Decision 1069 14
22/09/2014
R. Nairn
  • Re-employment (continuous employment)
  • Suitable employment (sustainability)
  • Employer (temporary help agency)

The worker was a truck driver who was employed by a personnel agency. He suffered multiple injuries when his truck rolled over in January 2006. The Board granted the worker a 27% NEL award. Since the worker could not return to pre-accident work as a truck driver, the employer assigned the worker to modified work in the dispatch area of one of its client firms in April 2007. The firm advised the employer that the worker had been playing games on his cell phone or falling asleep in this chair, and directed the employer to remove the worker.

The worker appealed a decision of the Appeals Resolution Officer finding that the employer did not breach its re-employment obligations when it failed to provide further modified work and that the worker was not entitled to LOE benefits after April 2007.
There was an issue as to whether the worker was continuously employed with the accident employer for at least one year at the time of the injury. The worker had taken leaves of absence in February 2005 and August 2005. The employer did not participate at the hearing. The uncontradicted testimony of the worker was that he had advised the employer that he would need time off in February and August, that the employer did not object and that he was immediately rescheduled for driving duties upon his return. If the leaves had been unauthorized, significant repercussions would reasonably have been expected.
The Vice-Chair noted that there were a number of exceptions in the Board policy to the requirement of continuous employment, including for temporary help agency workers where the requirement is only that the worker be on the placement agency's roster for at least one year, not that the worker be continuous on work assignments during that time. The Vice-Chair concluded that the employer had an obligation to re-employ the worker.
The Vice-Chair accepted the worker's uncontradicted evidence that the worker received little in the way of instruction for the modified work and that he spent countless hours sitting in a chair with nothing to do. The worker fell asleep or played games due to inactivity. The worker was also assigned to a variety of shifts alternating between night and afternoon on an almost daily basis. The Vice-Chair concluded that the modified work was not sustainable.
The client company may have been within its rights to ask that the worker be removed, but the employer had a continuing obligation to provide suitable, sustainable work. Given that the employer did not do so, the worker was entitled to further LOE benefits after April 2007.
The appeal was allowed.