The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.

Section 80 of the Act requires that an employer provide the WCB with payroll information at such times as the WCB may require.

The Board of Directors of the WCB made Manitoba Regulation 65/2006. Subsection 9(1) of this regulation provides that an employer must furnish an estimate of payroll, with such other information required by the WCB, on or before the last day of February in each year.

The Board of Directors also made WCB Policy 35.40.10, Relief from Assessment Penalties and/or Interest Charges. The policy provides:

1. Penalties

The WCB may grant relief of the penalty which would otherwise be imposed for failure to provide a payroll return or other statement required under subsections 80(1), (2) and (3), according to the following criteria:

a) A default will generally be considered excusable and relief of up to 100% of the penalty amount may be provided where the period of default is less than 5 business days. Where circumstances warrant, the 5 day period may be extended at the discretion of the Director of Employer Services.

b) A default will generally be considered excusable and relief of up to 50% of the penalty amount may be provided where the period of default is less than 30 calendar days, the employer does not have a prior history of default, and has cooperated fully with the WCB.

c) A default will generally be considered excusable and relief of up to 100% of the penalty amount may be provided where the cause of the default was beyond the control of the employer, the employer does not have a prior history of default, the employer has cooperated fully with the WCB, and the default does not extend beyond 60 calendar days.

Employer’s Position

The employer’s notice of appeal dated June 11, 2007 noted that the employer had no prior history of late filing, acknowledged its error and fully co-operated, and didn’t have the information to complete the form before the staff person responsible left for vacation. The employer submitted that the penalty was excessive.

Analysis

The issue before the panel was whether the employer is required to pay the reduced late filing penalty of $443.75. The panel found that the employer is required to pay the penalty.

The panel applied WCB Policy 35.40.10 and agrees the penalty was correctly reduced to $443.75 in accordance with subsection 1(b) of the policy.

It is apparent from the WCB file and the employer’s submission that the employer, from its prior years, is fully aware of its annual obligation to file the AWER with the WCB.

The tasks of filing the information can be scheduled by employers, and taken care of by its employees or their designates, in the case of vacations or other planned absences. The evidence is that the employer received the necessary payroll information prior to the end of February and thus was in a position to file on a timely basis. The failure to file on time was not, as suggested by the employer, beyond the control of the employer. Accordingly, there is no basis to provide the 100% cost relief requested by the employer.