- Re-employment (non-compliance)
- Loss of earnings {LOE} (termination of employment)
The worker received a 4% non-economic loss (NEL) award for his left 4th finger fracture and a "full thickness roller burn." He was terminated from his employment on January 28, 2019. The worker appealed the following issues: a) whether the employer breached its re-employment obligations; b) whether the worker was entitled to Loss of Earnings (LOE) benefits from January 22, 2019 to January 28, 2019; and, c) whether the worker was entitled to LOE benefits after the termination of his employment on January 28, 2019.
The Panel allowed the appeal.Section 41 of the WSIA sets out certain pre-conditions for the re-employment obligation to apply to an employer. Section 41 as a whole imposes a broader obligation on employers. For an employer to be in a position to potentially offer suitable work or the worker's pre-injury job, the employer must first maintain the employment relationship (refraining from terminating the injured worker). It is a condition precedent to fulfilling the more specific obligations to offer the worker suitable work and/or their pre-injury job. The overriding obligation to maintain the employment relationship is engaged from the moment of injury. The more specific obligations then arise if and when the worker may become fit for a return to any type of work. Terminating a worker prior to their fitness to return to any type of work, while the employer is within the period of overall duration of the re-employment obligation, is still a breach of the overriding obligation to maintain the employment relationship embodied in section 41. In this case, the re-employment obligation did apply to the employer at the time it terminated the worker and the termination was a potential breach of that obligation. Tribunal decisions have generally interpreted subsection 41(10) as including the underlying test that applies to any termination within the period of the obligation, even those where the presumption does not apply: was the termination related to the injury? OPM Document No. 19-02-02 provides that where the presumption does not apply, the decision-maker must examine: "whether the termination was for reasons related to the work injury/disease (and related absences from work), treatment for the work-related injury/disease, or the claim for benefits." The Panel found that the evidence showed on a balance of probabilities that the termination was related to the injury. The worker was not responding to requests for information about the status of his injury, and on that basis the employer terminated the worker. The employer knew that the worker had suffered an injury in the course of employment and why he was off work. The Panel concluded that the employer breached its re-employment obligation. In this case, terminating a worker when the employer believes the worker is not responding as he should following an injury and thus not co-operating in the ESRTW process – is precisely the type of conduct that WSIA section 41 was intended to address. The intent of the legislation is to ensure that problems or disputes in the return to work process following workplace injury – issues such as adequate communication, fitness to return to work, and suitability of work – are resolved through the dispute resolution processes established by the WSIA, rather than resorting to termination under labour and/or employment law.With respect to entitlement to LOE benefits from January 22, 2019 to January 28, 2019, it was reasonable during this acute phase for the worker to focus on his medical rehabilitation and to listen to his doctors' recommendations. The Panel accepted that risk of infection or interference with surgical healing was likely a consideration in the doctor's recommendation to stay off work. Since the worker was not able to return to any type of work from January 22, 2019 to January 28, 2019, he was entitled to full LOE benefits for that period. With respect to LOE benefits after termination, the Panel found that the worker should not be held responsible for bringing about the termination of his own employment. Accordingly, he was entitled to LOE benefits after his termination.