Highlights of Noteworthy Decisions

Decision 3836 17
20/02/2018
R. Nairn
  • Right to sue (wrongful dismissal)

The plaintiff was a worker in the course of employment at the time of an accident in March 2016. The employer terminated his employment in June 2016. The plaintiff brought an action against his employer for wrongful dismissal. The defendant applied to determine whether the plaintiff's right of action was taken away.

Tribunal decisions have found that an action for wrongful dismissal is not statute-barred. However, simply framing a claim as an action for wrongful dismissal cannot, in and of itself, displace application of the WSIA. Rather, the fundamental nature of the action must be considered, regardless of its description, to determine whether it arises with respect to the worker's compensable injury.
In this case, a portion of the claim was for negligence causing the workplace accident, pain and suffering, and lack of accommodation for the accident. This is inextricably linked to the compensable accident and is governed by the WSIA. The right of action with respect to this portion of the claim was taken away.
Another portion of the claim was for lost pay resulting from the dismissal and was reflective of a bona fide wrongful dismissal action. The right of action with respect to this portion of the claim was not taken away.
The application was granted in part.