The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the accident employer should be assessed a $4,000.00 penalty for contravening section 19.1(2) of the WCA. A file review was held on March 14, 2023 to consider the firm's appeal.

Issue

Whether or not the accident employer should be assessed a $4,000.00 penalty for contravening section 19.1(2) of the WCA.

Decision

The accident employer should be assessed a $4,000.00 penalty for contravening section 19.1(2) of the WCA.

Background

On February 15, 2022, the WCB's Compliance Services provided the accident employer with a Notice of Allegation, indicating they had received an allegation that the employer contravened section 19.1(2) of The Workers Compensation Act (the "WCA") when they terminated a worker's employment after he had advised the employer of a workplace injury and sought medical treatment.

An investigation was conducted, and on October 20, 2022, the WCB's Compliance Services advised that they had determined the employer had committed discriminatory action against a worker in their employ on December 2021, contrary to section 19.1(2) of the WCA, and that the employer was required to pay an administrative penalty of $4,000.00 as a result.

On November 15, 2022, the employer filed an appeal with the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the WCA, regulations made under the WCA and policies of the WCB's Board of Directors. The provisions of the WCA and regulations in effect as at November/December 2021 are applicable.

Subsection 19.1(2) of the WCA 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 WCA, 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 WCA 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 WCA 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 WCA provides, in part, that a person who is subject to an administrative penalty under section 19.1 of the WCA 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 for a first contravention that resulted in an administrative penalty within a five-years period; $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.

WCB Policy 22.20, Program Abuse (the "Program Abuse Policy"), outlines the authorities, principles, and processes for responding to allegations or suspected cases of program abuse, including claim suppression. Administrative Guidelines to the Policy provide, in part, that when the WCB determines that a contravention of the Policy has occurred, it will apply a set penalty for the contravention, unless there are mitigating factors that warrant a reduction or waiver of the penalty. The Policy further provides that if an inspector is satisfied that the person who committed the contravention has a reasonable explanation for the contravention, including, but not limited to, simple error or lack of familiarity with the worker's compensation system, they may reduce the penalty or waive it in its entirety.

Employer's Position

The employer was represented by its Chief Executive Officer, who provided a written submission in support of their appeal. The employer's position was that they acted with good intentions and without malice in ending the worker's employment, and that the $4,000.00 penalty was excessive and should be waived or reduced.

The CEO submitted that the decision to terminate the worker's employment and the timing of that decision were based solely on the worker's best interests. He submitted that terminating the worker while he was off work would give him time to find other employment, instead of blind-siding him on his return to work and giving him no time to find work. The CEO said he assumed the worker was only going to be away for a couple of weeks, so he acted as quickly as possible.

The CEO noted that as he had stated from the beginning of the investigation, he let the worker go because of poor workmanship. He said he knew the worker was not going to be with them for very long. The worker did not have a drivers licence and would not have had one until the following summer, which meant he would not be generating income for the business for at least 9 months after being hired. He would be in training for a long time and a drain on the firm, which made him a big investment and played into the decision to end the worker's employment before investing more money in him.

The CEO stated that he is an empathetic person. He said he liked the worker and remembered putting himself in the worker's shoes when he decided to let him go. He said he asked himself what he would want if he was laid up on a couch for two weeks: to be able to use that time looking for a new job, or to be blind-sided when he returned to work. The CEO stated that this was the only reason he let the worker go when he did.

The CEO stated that he admitted to the investigator that he would probably not have let the worker go at that point in time if he had not got hurt, but noted the worker would not have been around much longer. He said he saw this as a good time to let the worker go, although he has since learned that the timing was not in his own best interests.

In conclusion, the CEO submitted that the employer should not be penalized as they acted with good intentions and thought they were doing what was in the worker's best interests.

Analysis

The issue before the panel is whether or not the employer should be assessed a $4,000.00 penalty for contravening section 19.1(2) of the WCA. 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 WCA in breach of section 19.1(2) of the WCA; or if there was a breach of section 19.1(2) of the WCA, that the WCB applied an incorrect penalty against the employer, or should have reduced or waived that penalty. For the reasons that follow, the panel is unable to make such findings.

The panel is satisfied that the evidence establishes, on a balance of probabilities, that:

• The worker exercised the rights and carried out a duty under the WCA as follows: 

o advised the employer of his workplace injury on November 24, 2021, pursuant to section 17 of the WCA; 

o sought medical attention on December 1, 2021, pursuant to section 22(1) of the WCA; 

o followed medical advice to be absent from work to promote his recovery from December 1 to December 15, 2021 pursuant to section 22(1) of the WCA. 

• The employer was aware of the worker's injury on November 24, 2021 and that he sought medical advice on December 1, 2021. 

• On December 1, 2021, the employer took an action set out in section 19.1(5) of the WCA by terminating the worker. 

• The employer's action occurred after the worker's action and resulted in the application of the rebuttable presumption that the employer's action contravened section 19.1(2) of the WCA.

Section 19.1(3) provides that the employer may rebut the presumption that they took discriminatory action contrary to subsection 19.1(2) by showing that no part of the action they took in terminating the worker was motivated by the worker's workplace injury or subsequent absence from work to recover from his injury.

The employer has submitted on this appeal that he let the worker go because of poor workmanship or poor quality work. In the course of the investigation, the employer provided invoices relating to a job where the customer was not satisfied with the worker's work on November 3, 2021, and the employer had to fix the work on November 5, 2021. The panel is satisfied that the evidence supports that the employer had a concern with respect to the worker's work on this job. The panel notes, however, that there is a lack of evidence to support that there were other concerns related to the worker's performance.

In this regard, the evidence shows that while the employer terminated the employment of the journeyman who was working with the worker on the November 3, 2021 job shortly after the customer complained about that work, the worker's employment was not terminated at that time and he continued to work for the employer up until December 1, 2021.

The CEO submitted on the appeal that while he terminated the journeyman over that job, this was only the tip of the iceberg with respect to that individual and that the journeyman lost his job because he had a terrible attitude, and after a period of red flags surrounding this individual. The panel would have expected, however, that if there were concerns with the worker's performance as the employer has indicated, the employer would have terminated the worker at the same time as the journeyman who worked with him on the one job that had been identified and there would have been other examples of performance issues.

Further, or in any event, the CEO submitted on the appeal that he made the decision to terminate the worker's employment on December 1, 2021 based on his having been taken off work to recover from his injury, as he considered this to be in the worker's best interests. The CEO stated that this was the only reason he let the worker go when he did. In the circumstances, the panel is satisfied that the termination of the worker's employment was clearly related to the claim and the employer has failed to rebut the presumption of discriminatory action against the worker.

The panel notes that the employer's main position on the appeal related to the penalty which was imposed, in the amount of $4,000.00. Based on the information which is before us, the panel is satisfied that in assessing the penalty, the WCB correctly applied the provisions of section 19.1(4) and 109.7(1) of the WCA and Manitoba Regulation 15/2015 in establishing the amount of the administrative penalty in this case at $4,000.00.

The employer has argued, however, that the $4,000.00 penalty was excessive and should be waived or reduced in the circumstances. The Program Abuse Policy allows for a reduction or waiver of a penalty where there are mitigating factors or a reasonable explanation for the contravention, including simple error or lack of familiarity with the worker's compensation system. The panel notes that there is no suggestion that the contravention in this case was the result of simple error or lack of familiarity with the system.

While the CEO has argued that he was thinking of the worker and acting in his best interests by terminating his employment while he was off work on a WCB claim, the panel does not accept that argument or that this should be accepted as a mitigating factor or a reasonable explanation for the employer's actions which would entitle the employer to a waiver or reduction of the penalty in this case.

Based on the foregoing, the panel finds, on a balance of probabilities, that the employer took or threatened to take discriminatory action against the worker for exercising a right under the WCA in breach of section 19.1(2) of the WCA; and that the WCB applied the correct penalty against the employer for that breach. The panel therefore finds that the accident employer should be assessed a $4,000.00 penalty for contravening section 19.1(2) of the WCA.

The employer's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of May, 2023