The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the employer should be assessed an administrative penalty of $4,000.00 for contravening section 19.1(2) of The Workers Compensation Act. A videoconference hearing was held on April 5, 2022 to consider the employer's appeal.

Issue

Whether or not the accident employer should be assessed a $4000.00 penalty for contravening section 19.1(2) of The Workers Compensation Act.

Decision

The accident employer should be assessed a $4000.00 penalty for contravening section 19.1(2) of The Workers Compensation Act.

Background

On April 12, 2021, the WCB's Compliance Services provided the accident employer with a Notice of Allegation, indicating they had received an allegation that the employer committed a discriminatory action in contravention of section 19.1(2) of The Workers Compensation Act (the "Act"). The allegation related to a November 5, 2020 incident when a worker had advised the employer of a workplace injury, as required under the Act, and requested compensation for his full scheduled work day. It was alleged that in response, the employer had terminated the worker's employment on or about the same day. The employer was advised that they had until May 14, 2021 to respond to the Notice of Allegation.

Between April 13 and April 21, 2021, the employer provided the WCB with their written response to the Notice of Allegation and copies of further information, including a time sheet, pay stubs, Record of Employment, and text messages between the employer and the worker. On May 13, 2021, the WCB interviewed the worker, and on June 11, 2021, the worker contacted the WCB to request the investigation be stopped as he had reached a settlement with the employer. On September 20, 2021, the employer received a draft copy of Compliance Services' investigation report and provided a response to that report by email the same day.

On October 8, 2021, Compliance Services provided the employer with the Final Investigation Report, in which it was determined the accident employer contravened section 19.1(2) of the Act when they terminated the worker's employment after he requested payment for his full scheduled shift on the date of accident. It was further determined that the employer was subject to an administrative penalty in the amount of $4,000.00.

On October 8, 2021, the employer requested that the Appeal Commission reconsider Compliance Service's decision, noting the worker was terminated for reasons other than those set out in the Final Investigation Report. The employer's request was referred to the Reconsideration Committee on October 12, 2021, and on October 19, 2021, the employer provided the Reconsideration Committee with further written details to support their request.

On November 3, 2021, the Reconsideration Committee determined that the employer committed a discriminatory action in contravention of section 19.1(2) of the WCB and upheld the assessment of a $4,000.00 administrative penalty. The Committee found that the worker was exercising a right under the Act when he sought medical attention for an injury and reported to the healthcare providers that the injury happened at work. The Committee found that when the worker indicated to his supervisor that he wanted to be paid for a full shift the day of the injury, the supervisor threatened to fire him, and that following a discussion between the supervisor and the owner, the worker was fired. The Reconsideration Committee found that the worker's reporting of his injury on November 5, 2020 and the timing of his termination implied a causal relationship, and that the evidence provided by the employer did not rebut the presumption that the employer took discriminatory action against the worker in terminating his employment.

On December 13, 2021, the accident employer appealed the Reconsideration Committee's decision to the Appeal Commission, and a videoconference hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations made under the Act and policies of the WCB's Board of Directors. The Act and regulations in effect on the date of the November 2020 incident are applicable.

Subsection 19.1(2) of the Act deals with discriminatory action, and provides, in part, that "No employer or person acting on behalf of an employer shall take or threaten to take discriminatory action against a person for…exercising any right or carrying out any duty in accordance with this Act or the regulations."

Subsection 19.1(3) deals with the matter of onus and provides, in part, that if, in a proceeding under the Act, it is established that discriminatory action was taken against a person after he or she exercised any right or carried out any duty in accordance with the Act or the regulations, the employer is presumed to have taken the discriminatory action contrary to subsection (2). The employer may rebut the presumption by showing that the action taken was not related to such conduct.

Subsection 19.1(4) provides that a person who contravenes section 19.1 of the Act commits an offence and is subject to an administrative penalty under subsection 109.7(1).

"Discriminatory action" is defined in subsection 19.1(5) as including "…any act or omission by an employer or a person acting on behalf of an employer that adversely affects a worker's employment, including a transfer, demotion, layoff or termination."

Subsection 109.7(1) of the Act provides, in part, that a person who is subject to an administrative penalty under section 19.1 of the Act shall, where the WCB determines, pay to the WCB a penalty in an amount prescribed by regulation. Manitoba Regulation 15/2015 (now 71/2021) sets out the amount of an administrative penalty in respect of a breach of subsection 19.1(2) as: $4,000 if there is no other failure to comply with subsection 19.2(2); $5,000 for a second contravention in a five-year period; and $6,000 for a third or subsequent contravention in a five-year period.

Employer's Position

The employer was represented by its owner/president, who made an oral submission at the hearing and responded to questions from the panel. The employer's position was that they should not be assessed a penalty as they did not contravene subsection 19.1(2) of the Act, and their appeal should be granted.

The employer's representative submitted that the worker was not terminated for filing a WCB claim, but for dishonesty and for trying to extort money from the employer.

It was submitted that the WCB's position that the employer fired the worker for asking to be paid for a full shift on the day of accident or for making a WCB claim did not make sense. The representative submitted that there was never going to be a claim or a paid claim, as the worker had been cleared to return to work by the two physicians he saw on the day of the incident and the employer knew this. The worker was going to come back to work the same day, but the jobsite supervisor told him to go home as he was getting paid anyway. When the jobsite supervisor asked if he would be coming in the next day, the worker said he would, as his doctors had said he could return to work.

The employer's representative submitted that the worker was terminated because he subsequently indicated he wanted the employer to pay him to not report his injury. The representative said the worker told him directly "I'm not going to report the injury, I should get something." The employer's representative stated that the worker also told him he would not come back to work the next day if they did not pay him not to claim an injury. The representative noted that it was company policy and the law, however, that the worker had to report the injury, and submitted that if they had paid the worker to not report the injury, as he wanted them to do, the WCB would have been entitled to come after them for contravening the Act.

It was submitted that the WCB ignored the evidence on file in the form of the text messages and the confirmation from the treating physicians that the worker had been cleared to return to work. The representative submitted that there was really no claim for funds, and noted that the worker never even submitted receipts for any medication or medical aid benefits in respect of the workplace incident.

The employer's representative submitted that they had no reason or incentive to terminate the worker's employment, and but for his dishonesty, they would not have fired him. He said they had no reason to expect that the claim would affect their WCB premiums as the worker had been cleared to return to work the same day. The representative noted that they had not been able to replace the worker since he was fired, and everything had been fine with the worker until he told them he wanted to be paid money to not file a claim or he was not coming back to work.

Analysis

The issue before the panel is whether or not the accident employer should be assessed a $4000.00 penalty for contravening section 19.1(2) of the Act. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the employer did not take or threaten to take discriminatory action against the worker for exercising a right under the Act. The panel is unable to make that finding, for the reasons that follow.

Based on our review of all of the evidence and submissions, on file and as presented at the hearing, the panel is satisfied, on a balance of probabilities, that the employer took discriminatory action in contravention of subsection 19.1(2) of the Act when they threatened to terminate and terminated the worker's employment on or about November 5, 2020 after he indicated he wanted to be paid for a full scheduled shift on the day of his workplace injury.

Information on file shows that following his workplace incident on November 5, 2020, the worker sought medical attention for his injury. A series of text messages on file between the worker and his direct supervisor later that day reads as follows:

Worker: I want 8 hours for today.

Supervisor: No.

Worker: I humbly disagree. 6 hours on the job site, two hours in hospital from saidvjoon (sic) site.

Supervisor: How about zero hours from now on?

When it was put to the employer's representative at the hearing that it seemed from this exchange that the worker was only asking to be paid for his eight scheduled hours of work that day, the representative's response was that there were texts missing; that what was missing was "…about five texts between [the worker and his direct supervisor]." The representative stated that the worker "…only supplied a portion of his texts from his phone. He actually deleted all the texts from his work phone. When I got the work phone back from him, which he was texting from as well, that phone was completely factory reset." The representative went on to add that "…my texts are not even in that file at all. None of my texts were kept or added to that file…"

The panel is unable to place any weight to the employer's comments or position in this regard. The panel notes that even though the employer was aware early on of what information was or might be in the possession of the parties and the WCB, there was a lack of any allegation prior to the hearing that the texts did not accurately reflect the exchange between the parties.

The panel notes that there is no dispute that the employer terminated the worker's employment on or about November 5, 2020, subsequent to his workplace accident. In the circumstances, and given the reasons the employer has advanced for terminating the worker's employment in this case, the panel would have expected that the employer's representative (president/owner) would have saved any email messages relating to the exchanges between the parties relating to the worker's injury and his termination. The panel would also have expected, in the circumstances, that any relevant text messages on the supervisor's phone would have been retained. The panel notes that copies of text messages were provided with the employer's response to the draft investigation report.

The evidence further shows that there was limited cooperation from the employer with the investigation. The employer provided a Response to the draft Investigation Report, but the president and the worker's direct supervisor declined to be interviewed or to participate further in the investigation.

The panel acknowledges that the worker had indicated in a text to the supervisor on the date of accident that he had not reported his injury to the WCB. The panel is not satisfied, however, that the evidence supports that the worker requested he be paid not to report the injury. Further, while the employer's representative submitted that he told the worker he could not contract out of the Act, the panel notes that the evidence does not support that the employer told the worker prior to his termination that he had to file a report with the WCB with respect to his injury or encouraged the worker to file such a report. The panel notes that the employer would also have had an obligation to report the workplace injury to the WCB.

While the employer's representative had also argued in the course of the proceedings that the worker had asked to be paid for five additional hours where he was seeking treatment for his injury in hospital, the panel is unable to find that the evidence supports that argument.

In summary, the panel is satisfied that the evidence supports that the worker exercised a right under the Act when he sought medical treatment for a workplace injury, reported the injury to the employer and his healthcare providers, and requested the employer pay him for his full scheduled shift that day; that the employer terminated the worker's employment that same day; and that the termination of his employment was causally related to the worker's reporting of his workplace injury.

With respect to the amount of the penalty imposed, the employer's representative indicated, in response to questions from the panel at the hearing, they were not taking issue with respect to the actual calculation or calculated amount of the assessment of $4000.00. Rather, their issue, as they stated, was that there was no contravention and there should not have been any penalty. Based on the information which is before us, the panel is further satisfied that in assessing the penalty, the WCB correctly applied the provisions of subsections 19.1(4) and 109.7(1) of the Act and Manitoba Regulation 15/2015 in establishing the amount of the administrative penalty in this case at $4000.00.

Based on the foregoing, the panel finds, on a balance of probabilities, that the employer threatened to take and did take discriminatory action against the worker for exercising a right under the Act. The panel therefore finds that the accident employer should be assessed a $4000.00 penalty for contravening section 19.1(2) of the Act.

The employer's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of June, 2022