Highlights of Noteworthy Decisions

Decision 1876 17
B. Doherty
  • Deductions (severance pay)
  • Firefighter (volunteer)
  • Loss of earnings {LOE} (lay-off)
  • Merits and justice
  • Labour market re-entry {LMR} (eligibility) (lay-off)

The worker worked full-time in automotive assembly and as a volunteer firefighter. He suffered a left knee injury in May 2004 while working as a volunteer firefighter. He returned to his automotive assembly job in January 2005 but was unable to return to work as a volunteer firefighter. The municipality (which was the deemed employer for voluntary firefighter purposes) had selected an earnings amount of $67,000. In May 2009, the worker was laid off from the auto assembly job due to closure of the plant. In March 2010, the worker began part-time employment in a records management position with the municipality.

Both the worker and the municipality appealed decisions of the Appeals Resolution Officer regarding LOE benefits.
In Decision No. 1876/17I, the Vice-Chair noted that the worker had received LMR services in 2007, but was not provided with an LMR plan at that time because it was unnecessary as the job he was actually performing in auto assembly was suitable. That hearing was adjourned to give the parties the opportunity to provide written submission on the issue of entitlement to further LMR services after the plant closure.
After receiving submissions, the Vice-Chair now found that the worker was not entitled to further LMR services. Board policy provides that a worker is generally entitled to one LMR assessment and plan, but there are circumstances where a reassessment is granted. One exception is when there has been a deterioration in the worker's condition, which was not the circumstance in this case. Another exception is when a worker has returned to an extensively accommodated job that later becomes unavailable, which was also not the circumstance in this case.
The part-time work in records management that the worker was performing for the municipality remained suitable. Neither party suggested that the worker was under-employed. The Vice-Chair was satisfied that the part-time work in records management was an appropriate SEB for the worker. The worker's LOE benefits as of March 2010 should be based on his actual earnings, subject to the Vice-Chair's findings on a corollary issue.
For the period from the plant closure in May 2009 until March 2010, the worker's employability was affected by his compensable injury but there was no evidence that the worker was engaged in reasonable efforts to secure suitable employment or improve his employability. The Vice-Chair found that the worker was entitled to LOE benefits during this period based on ability to work full-time in a direct-entry job, again subject to findings on the corollary issue.
The corollary issue related to payments received by the worker from the regular employer after closure of the plant. The worker had the option of a lump sum payment or weekly benefits over a period of time. The worker chose the weekly benefits. He received those weekly benefits from May 2009 to December 2010. The worker was still receiving those weekly benefits at the time of the final LOE review in June 2010.
Referring to previous Tribunal decisions, the Vice-Chair found that the consensus seemed to be that an amount paid in lieu of notice under the Employment Standards Act is not considered earnings and is not deducted in determining LOE benefits, but any additional payments by an employer to a laid-off worker should be considered earnings and should be deducted.
The Vice-Chair accepted that approach for the determination of LOE benefits prior to the final review. However, that approach would lead to an unfair, if not absurd, result at the final review. It would be unfair to base LOE benefits to age 65 on this weekly benefit that ended shortly after the final review.
The appeals were allowed in part.