Highlights of Noteworthy Decisions

Decision 2816 18
A. Patterson - M. Lipton - C. Salama
  • Intervening causes
  • Loss of earnings {LOE} (termination of employment)
  • Estoppel (criminal conviction)

The worker was a social integration agent in a facility for individuals with cognitive and behavioural disorders. She suffered three compensable accidents in 2008 and 2009, when patients bit her or tried to bite her. The Board granted entitlement for psychotraumatic disability. The employer appealed a decision of the Appeals Resolution Officer granting the worker LOE benefits beyond June 2009.

In April 2009, a co-worker alleged that two other co-workers engaged in inappropriate behaviour with residents that constituted bullying and abuse. The employer conducted an investigation and terminated the employment of the two co-workers. The Ontario Provincial Police charged the two co-workers but they were acquitted of all charges.
In June 2009, the worker's employment was terminated for failure to report incidents of abuse.
Regarding entitlement following termination of employment, the Panel agreed with the analytical framework set out in Decision No. 904/14 that the question was whether the worker's conduct prior to termination was consistent with the responsibility to act reasonably to minimize post-injury wage loss and resulted in the loss of employment opportunity. Put another way, the question is whether the worker's conduct, which resulted in termination of employment, introduced an intervening event such that the worker was responsible for the loss of earnings and loss of employment opportunity.
The Panel reviewed the evidence and concluded that the two co-workers engaged in inappropriate conduct toward the residents. The fact that they were acquitted of all criminal charges was not determinative of the issue. First, criminal proceedings are determined on the criminal standard of beyond a reasonable doubt, whereas findings of the Tribunal are based on the civil standard of balance of probabilities. Secondly, the worker was not one of the accused in the criminal proceedings.
The Panel further found that worker likely witnessed inappropriate behaviour. The failure of the worker to report these incidents of inappropriate behaviour was a breach of the employer's code of conduct. The obligation to report abuse was an essential element of the employment relationship, not a minor or incidental contractual stipulation. The worker's conduct in failing to report inappropriate behaviour constituted conduct such that the worker should be held responsible for the loss of employment opportunity with the employer. It was a breach of a fundamental and essential component of the employment contract, and it introduced an intervening event such that the worker was responsible for the following loss of earnings and loss of employment opportunity.
The appeal was allowed.