Highlights of Noteworthy Decisions

Decision 1638 16
07/07/2016
S. Martel
  • Re-employment (obligation to re-employ) (unable to work)
  • Re-employment (termination)
  • Board Directives and Guidelines (re-employment) (unable to work)

A truck driver experienced left shoulder pain in May 1999. He did not lose time from work and continued performing his regular duties. His employment was terminated in June 1999. The worker appealed a decision of the Appeals Resolution Officer finding that the employer did not breach its re-employment obligations.

The re-employment obligation in s. 41 of the WSIA only applies when a worker has been unable to work as a result of an injury. According to Board policy, a worker is unable to work if unable to perform the essential duties of the pre-injury job or if the worker requires workplace modifications or assistive devices to perform the essential duties of the pre-injury job.
In this case, the worker continued with his pre-injury job duties without accommodation or the need for accommodation. There was no evidence of lost time and no evidence that the worker was unable to perform the essential duties of his pre-injury job. The worker did not meet the threshold for application of s. 41. The worker's employment was terminated due to a comment he made to a customer prompting a customer complaint.
The appeal was dismissed.