Highlights of Noteworthy Decisions

Decision 54 14
S. Darvish - M. Christie - C. Salama
  • Agreement (parties)
  • Merits and justice
  • Re-employment (non-compliance) (penalty) (technical breach)
  • Re-employment (settlement)

In Decision No. 54/14I, the Panel determined the issue agenda for the worker's appeal. It would consider whether the worker was a construction worker and whether the employer had a re-employment obligation to the worker. Depending on the decision on the merits of these issues, the Panel will remit the issue of LOE benefits and a work transition plan back to the Board, if necessary.

At the next scheduled hearing, the parties submitted a joint proposal for settlement. The Panel noted that there is precedent in Tribunal decisions for acceptance of such proposals in the context of cases regarding an employer's re-employment obligation and the associated penalty. The Panel accepted the joint proposal, as outlined below.
The worker was hired in June 2006 and was injured in May 2007. His employment was terminated in February 2008. The accident employer was engaged primarily in construction. The worker was a construction worker.
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 further provides that its application is not contingent on the length of a worker's continuous employment. Section 41(9) of the WSIA provides that, until the requirements in s. 41(8) are prescribed, s. 54(9) of the pre-1997 Act and O. Reg. 259/92 continue to apply. O. Reg. 35/08 came into force in September 2008 but does not apply to accidents prior to September 1, 2008. Thus, s. 54(9) of the pre-1997 Act and O. Reg. 259/92 continue to apply in this case.
The employer terminated the worker's employment after an altercation with a co-worker. The termination was related to the workplace injury in that the altercation was predicated on tension between the worker and the co-worker related to a dispute involving the worker's modified duties, the burden on the co-worker and potential return to pre-injury duties. Factors relevant to the merits and justice in exercising discretion regarding the imposition of a penalty against the employer were: the employer's voluntary re-employment of the worker and assignment of modified duties; the termination following the altercation; and the lack of anti-injured-worker animus.
The Panel found two approaches in Tribunal decisions to the discretion regarding penalties. One approach relied on the concept of a technical breach, while the other approach, in more recent decisions, applied the real merits and justice principle. The Panel preferred the more recent approach based on the real merits and justice. It does not make sense to resort to the concept of a technical breach, since that is predicated on a finding that a termination is not related to a compensable injury but, rather, to some other cause having nothing to do with the injury. If so, there would be sufficient evidence to find that the termination was unrelated to the injury and that there was no breach of the re-employment obligation
The merits and justice approach starts with a finding that the employer did breach its re-employment obligations and then examines the circumstances leading to the termination to determine whether a penalty is justified. In this case, the Panel accepted the agreement of the parties and found that the worker's conduct played a substantial role in the termination of his employment. In accordance with the real merits and justice of the case, no penalty should be imposed on the employer.
The appeal was allowed in part.