Highlights of Noteworthy Decisions

Decision 3080 16
M. McKenzie
  • Suitable employment
  • Loss of earnings {LOE} (wage loss) (Employment Standards Act)

The worker suffered a thumb injury on Thursday, April 17, 2014. He sought treatment on the day of the injury, and was authorized to be off work until Saturday, April 19. The employer offered modified work, but the worker did not return to work until April 22. The Board paid LOE benefits for April 18, but not for April 19 to 21 because suitable modified work was available. The employer appealed a decision of the Appeals Resolution Officer granting LOE benefits for April 18.

April 18 was a statutory holiday, Good Friday. The worker was not scheduled to work that day, which was why the employer offered modified work as of April 19.
The Vice-Chair referred to s. 26 of the Employment Standards Act. The Tribunal does not have jurisdiction to decide disputes under the Employment Standards Act but it is entitled to consider the provisions of the Employment Standards Act where necessary to decide an issue that does fall within the jurisdiction of the Tribunal.
Section 26 of the Employment Standards Act provides that an employee is entitled to the day off or payment for a public holiday if the public holiday falls on a day that would ordinarily be a working day for the employee. There is an exception that an employee has no entitlement if the employee fails, without reasonable cause, to work all of the employee's last regularly scheduled shift before the public holiday or all of the first regularly scheduled shift after the public holiday.
In this case, the worker did not attend work on Saturday, April 19, his first regularly scheduled shift after the public holiday. The Board determined that the employer had offered suitable modified work in an offer made in writing on April 17. Evidence did not indicate that the worker stayed off work on April 19 due to his compensable thumb injury. Rather, the evidence indicated that the worker made a personal choice to stay off work for the entire Easter long weekend, thereby missing his regularly scheduled shift on April 19.
Since the worker did not work on his first regularly scheduled shift after the public holiday for reasons unrelated to the compensable injury, he was not eligible to be paid for April 19 and, accordingly, was not entitled to be paid for the public holiday on April 18. Therefore, the worker did not suffer a wage loss on April 18 that was related to his compensable injury.
The worker was not entitled to LOE benefits for April 18. The appeal was allowed.