Highlights of Noteworthy Decisions

Decision 1856 14
G. Dee (FT) - M. Christie - A. Grande
  • Re-employment (obligation to re-employ) (unable to work)
  • Re-employment (termination)
  • Presumptions (termination of re-employment) (construction industry)

A sheet metal worker suffered a shoulder injury in March 2009, for which he was granted a 7% NEL award. He returned to modified work as a sheet metal worker in the employer's premises. In September 2009, the worker left after a heated argument with his supervisor. The employer claimed the worker quit, whereas the worker claimed that his employment was terminated for reasons that were at least partially related to his compensable injury. The worker appealed a decision of the Appeals Resolution Officer finding that the employer did not breach its re-employment obligations.

The worker was in the construction industry. There are regulations regarding the construction industry. Where termination occurs within six months of a worker being re-hired following an injury, there is a rebuttable presumption that the employer's re-employment obligation has been breached.
The employer submitted that there was no re-employment obligation in existence because the worker was not "unable to work" within the meaning of s. 41(1) of the WSIA. Board Operational Policy Manual, Document No. 19-05-02, dealing with the re-employment obligation in the construction industry, provides that a worker is considered unable to work if the worker is absent from work, works less than regular hours or requires accommodated or modified work that pays, or normally pays, less than regular pay, regardless of whether the employer reimburses the worker for an actual loss of earnings.
In this case, the worker did not miss time from work and the employer maintained the worker at his pre-injury rate of pay. The worker would have had difficulty returning to work at construction sites, considering his inability to perform heavy and overhead work. He returned to work in the employer's shop. There was no evidence that such a position existed with the employer on a regular basis. The position appears to have been created in response to the need to re-employ the worker. Such a job at the same rate of pay as the worker's pre-injury earnings would not have been available in the work force. The fact that the employer paid the worker his full pre-injury wages did not indicate that the work would normally be paid at such a rate. The position was not normal within the construction industry and the rate of pay was not set by what market conditions required.
The Panel concluded that the worker required modified work that normally would pay less than his regular pay. The worker was "unable to work" within the meaning of s. 41(1) and the Board. Accordingly, there was a re-employment obligation.
The employer did not rebut the presumption that the re-employment obligation was breached. The worker appears to have been treated differently than other workers of the employer. A pattern of refusal to accept direction by the worker was not established. A number of statements by the supervisor were inconsistent.
The employer did not comply with its re-employment obligations. The worker was entitled to further benefits after September 2009. The appeal was allowed.