Highlights of Noteworthy Decisions

Decision 1005 17
A. Patterson
  • Availability for employment (job search) (pursuing grievance)

The worker suffered a shoulder and neck injury in October 2008. The Board granted the worker a 20% NEL award for chronic pain disability. In Decision No. 2453/12, the Tribunal found that modified work offered by the employer was not suitable and that the worker was entitled to further LOE benefits.

The worker now appealed a decision of the Appeals Resolution Officer denying full LOE benefits from December 2011 to June 2012.
The worker's employment was terminated by the employer in December 2011. The worker filed a grievance in January 2012. A memorandum of agreement was signed in June 2012, providing that the worker would receive a lump sum, in consideration of which she waived reinstatement rights under the collective agreement.
The worker did not look for other employment during the period in question.
Based on review of Tribunal decisions, the Vice-Chair found that, where there exists a reasonable basis to expect a favourable outcome from a grievance proceeding, it is reasonable to await the outcome of the grievance proceeding rather than seek alternative employment. The Vice-Chair noted that, in this case, the worker had significant seniority in a unionized environment, had been provided with modified work, and that the period during which she awaited the outcome of the grievance was relatively brief. Thus, it was reasonable for the worker to expect to be reinstated with the employer.
In the particular circumstances of the case, the worker was realistically pursuing re-employment with the accident employer and was entitled to full LOE benefits during the period in question. The appeal was allowed.