Employers are often reluctant to discipline or terminate an injured worker while on a WSIB claim. The hesitation in large part is the anxiety related to the possible fallout in dealing with potential WSIB re-employment issues, which can be very punitive, if breached. However, this should not be the impetus for letting injured workers do what they want. As an employer, you still have the right to manage your employees. Although it is a sensitive issue, and one that has potential consequences, if you properly structure your WSIB Return-to-Work (RTW) policy and detail your RTW plans with clear written employment expectations, you can better mitigate potential legal consequences.
The difficulty in disciplining or even terminating an injured worker while on WSIB is to clearly segregate the non-compensable actions as not being related to the injury. There is a higher standard of burden on the employer to prove such a case, so documentation, re-training, re-education is paramount in supporting your case. Such items to include in the RTW plan can include performance expectations and employment rules that may include not reporting to work on time, leaving work early or not showing-up for work at all. It is essential that you are able to clearly document that the disciplinary action or even termination is not related to the injury. This is key to your due diligence defence.
There is strong case law to support that termination must be just and entitlement to WSIB benefits denied. Consider the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision No. 2035/00. This decision found that when workers are dismissed from suitable modified work at no wage loss for just cause, the workers must be deemed to have taken themselves out of the workplace through their own actions, and a loss resulting from such actions will not be compensable in the absence of other relevant circumstances. Such a loss cannot be said to be a result of a compensable workplace accident. In this case, the worker was dismissed for just cause, having repeatedly violated the employer's rules concerning breaks and leaving work early. The worker was not entitled to further benefits or services.
WSIAT Decision No. 655/08 found that an injured worker who was performing modified work had brought about the termination of his employment by walking off the job, and a personality conflict with management and co-workers, and not because of his injury. The worker was not entitled to further benefits.
While each case is based on its own merits and circumstances, the point of this article is to confirm for employers that you have the right to manage your employees. What is important to remember is that when dealing with a WSIB claim you need to clearly and objectively demonstrate that the disciplinary actions or termination is in no way related to the injury. If this cannot be proven, the legal implications can be substantial.
WSIB Claims Management Training Course
Please feel free to forward this newsletter to your fellow colleagues and depending on the interest in the employer community, we will be offering a course on this topic including understanding basic employment law and what constitutes termination in the near future. Should you be interested, please let me know and I will keep you posted on possible course dates.
For further information please contact Greg Sathmary at (613) 260-0600.