- Re-employment (construction industry)
- Re-employment (obligation to re-employ)
- Re-employment (termination)
- Loss of earnings {LOE} (termination of employment)
- Jurisdiction, Tribunal (sequential issue)
The worker sought to appeal a finding that the employer did not breach its re-employment obligation under Operational Policy Manual, Document No. 19-05-02, "Re-employment Obligation in the Construction Industry - Threshold, Duration and Specific Employer Requirements". The worker requested that the Tribunal address entitlement to LOE benefits from the date of termination to the date of the worker's compensable surgery, which was performed on January 16, 2020.
The Panel allowed the appeal, in part. Policy 19-05-02 states: "Construction employers are required to offer to re-employ their injured construction workers who have been unable to work due to a work-related injury/disease." Tribunal case law and Board policy have interpreted the phrase "unable to work" to mean that the injury must impact the worker's ability to perform their full pre-injury job hours and/or ability to perform their regular pre-accident job. The Panel found, on a balance of probabilities, that the worker was "unable to work" and therefore, there was a re-employment obligation. The compensable accident was on May 17, 2019. The worker was terminated on June 12, 2019, within 6 months of the re-employment period and during his probationary period. The Panel noted that the fact that the employer may have been legally entitled to terminate the worker during his probation period is not sufficient to rebut the presumption set out in section 41(10). The legality of the termination does not establish, on a balance of probabilities, that the cause of the termination was unrelated to the compensable accident, injury or the worker's claim for benefits. The Panel found, on a balance of probabilities, that the employer was seeking to replace the worker prior to the accident. As such, the worker's termination in June was not related to the compensable accident. The Panel found it had jurisdiction to address the worker's entitlement to LOE benefits following the termination, regardless of whether there was a breach of the re-employment obligation. The worker's termination and entitlement to LOE benefits were addressed by the case manager and the ARO. Sending this issue back to the WSIB would consume necessary time and resources. The parties are to advise the Tribunal within 30 days of the release of this decision on any additional evidence they wish to call for the Panel's consideration on this issue.