Decision #59/23 - Type: Workers Compensation
The firm 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 sections 19.1(1) and 19.1(2) of The Workers Compensation Act ("the WCA"). A videoconference hearing was held April 18, 2023 to consider the firm's appeal.
Whether or not the accident employer should be assessed a $4,000.00 penalty for contravening sections 19.1(1) and 19.1(2) of the WCA.
The accident employer should be assessed a $4,000.00 penalty for contravening section 19.1(2) of the WCA.
On August 31, 2022, the WCB's Compliance Services provided the firm with a Notice of Allegation alleging the firm had contravened sections 19.1(1) and 19.1(2) of the WCA when a worker's employment was terminated after reporting a WCB injury and seeking medical treatment. Evidence was provided alleging the firm attempted to dissuade the worker from filing a WCB claim. An investigation was conducted and on December 7, 2022, the firm was advised by the WCB's Compliance Services it had been determined the firm had attempted to prevent or discourage a worker from applying for, pursuing, or receiving workers compensation contrary to section 19.1(1) of the WCA and committed a discriminatory action against a worker contrary to section 19.1(2) of the WCA and as such, the firm was required to pay an administrative penalty of $4,000.00.
The firm filed an appeal with the Appeal Commission on December 7, 2022 and a hearing was arranged.
The Appeal Commission and its panels are bound by the WCA, regulations and policies of the Board of Directors. Section 19.1 of the WCA prohibits employers and their representatives from taking action to discourage making claims under the WCA. Section 19.1 provides as follows:
Discouraging worker from claiming compensation
19.1(1) No employer or person acting on behalf of an employer shall take any action that prevents or discourages or attempts to prevent or discourage a worker from applying for compensation, pursuing an application that has been made or receiving compensation under this Part.
No discriminatory action
19.1(2) No employer or person acting on behalf of an employer shall take or threaten to take discriminatory action against a person for
(a) reporting or attempting to report an alleged violation of subsection (1) to the board; or
(b) exercising any right or carrying out any duty in accordance with this Act or the regulations.
Onus on employer
19.1(3) If, in a prosecution or other proceeding under this Act, it is established that discriminatory action was taken against a person after he or she
(a) reported or attempted to report an alleged violation of subsection (1); or
(b) exercised any right or carried out any duty in accordance with this 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 the conduct described in clause (a) or (b).
Offence and administrative penalty
19.1(4) A person who contravenes this section commits an offence and is subject to an administrative penalty under subsection 109.7(1).
Meaning of "discriminatory action"
19.1(5) In this section, "discriminatory action" includes 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.
Where a person is subject to an administrative penalty under s 19.1, s 109.7(1) provides that they shall, where the board determines, pay to the board a penalty in an amount prescribed by regulation. Manitoba Regulation 71/2001 sets out the amounts of such an administrative penalty, as being, in respect of a breach of s 19.1(1) or (2): $4,000 if no other failures to comply with subsection 19.1(1) in the preceding five-year period; $5,000 for second contravention in a five-year period; and $6,000 for third or subsequent contravention in a five-year period.
The firm was represented in the appeal hearing by its owner, who made oral submissions on behalf of the employer and provided testimony through answers to questions posed to them by members of the appeal panel.
The firm’s position is that it should not be subject to a fine for contravention of either s 19.1(1) or 19.1(2) as there was no intention to discourage the worker from making a claim to the WCB and further, as the worker was terminated for reasons unrelated to their injury and claim to the WCB.
The firm owner advised the panel of their belief that they were entitled to fire the worker for any cause or reason, based upon the information they obtained from a telephone call to the Manitoba Labour Board. The owner noted that in their industry, it is common to let employees go at any time, for any reason. Further, the owner stated that they are a subcontractor and lost their primary contract at or shortly after the time that the worker made their injury claim, and that as a result, both the owner and worker “got terminated”.
The owner argued that they did not accept the worker’s statement that they were injured in the course of their work and testified that the worker came to work limping and in pain on the date they claimed they were injured. The owner testified that when the worker asked if the firm was covered by WCB, they advised the worker that the firm had not paid premiums to the WCB but that they understood the worker could apply for employment insurance benefits. The firm owner stated their belief that a claim could not be made because they had not paid any premiums to the WCB. The owner confirmed that they paid their premiums to the WCB shortly thereafter, upon being advised of the claim made by the worker and of the amount owing to the WCB for the firm assessment.
In the Employer Appeal of Claims Decision form filed with the Appeal Commission on December 7, 2022, the owner also indicates their belief that the Review Office decision should be overturned because “I do not believe I did anything wrong” and elaborated upon the reasons why they believe the worker had injured themselves before attending work on the date of the claimed accident. Further, the owner noted that after learning of the claim, they called the WCB and paid their "dues”, and that their company “ended the day I let [the worker] go. I’ve been working elsewhere and my company no longer exists.”
The issue on appeal is whether the employer should be assessed a $4,000.00 penalty for contravening s 19.1(1) and s 19.1(2) of the WCA. For the appeal to succeed, the panel would have to determine that the firm did not prevent or discourage or attempt to prevent or discourage the worker from applying for compensation, and that the firm did not take or threaten to take a discriminatory action against a person for exercising a right under the WCA, or if there was a breach of s 19.1(1) or (2), that the WCB applied the incorrect penalty against the firm.
In considering the employer’s appeal, the panel reviewed the evidence as to the firm’s actions in respect of the workplace accident of June 16, 2022. The panel noted that the worker’s Incident Report to the WCB was provided in the early afternoon of June 17, 2022, and that the Employer’s Accident Report to the WCB was provided on June 20, 2022. The Employer’s Accident Report noted that the worker arrived at work on June 16, 2022 wearing a knee brace and walking slowly, and that the worker was fired on June 17, 2022. The WCB claim file in respect of that accident confirms that the employer stated on multiple occasions that they did not believe the worker was injured at work. The claim file also includes copies of a June 17, 2022 text message from the firm owner to the worker indicating the concerns that the employer had about when and where the worker’s injury occurred and setting out that the worker’s services will no longer be required. The message indicates that this was sent to the worker at 5:56 p.m. on June 17. In subsequent messages, the worker noted that “You literally heard my knee tear on site. Filing a worker’s comp claim cost you nothing. I showed up to work fully mobile now I’m on crutches what exactly is the issue”. The firm owner replied by message indicating that, in their industry, “Don’t need a reason. I called labour board you can claim ei. If your (sic) injured and can’t work.” The WCB accident claim file further indicates that the firm owner advised the WCB on June 29, 2022 that because the worker was the only employee of the firm and the owner was unable to get WCB coverage for themself only, “there was no point in having WCB coverage” so they had cancelled the WCB coverage as of June 17, 2022.
The panel noted that in the investigation undertaken by WCB’s Compliance Services, the worker provided copies of text messages they state were exchanged with the firm owner. Those messages indicate that at 11:41 a.m. on June 16, the worker asked “Do you pay into workman’s comp” and received a response “No”. In further messages in the same conversation, the firm owner commented upon the worker’s prior knee issues. Later the same day, the worker sent additional messages to the firm owner indicating that the firm was required to contribute to the workers compensation program and that they would be filing a claim and that the employer was also required to make report. The next message in the record provided by the worker is from June 17 at 5:56 p.m., in which the firm owner outlines their belief that the worker staged the injury on the previous day and advised the worker their services were no longer required. This final text message exchange was confirmed by the firm owner’s own record as provided to the WCB’s Compliance Services.
The WCB account file for the employer firm indicates that the WCB contacted the firm on June 20, 2022 in relation to the claim made by the worker on June 17, 2022 and that the firm owner indicated at that time their belief that the injury did not occur at work. The firm owner further indicated that they did not understand the need for WCB coverage to be activated to the date of hiring the worker given the injury did not occur until June 2022. The firm owner activated their coverage the same date, providing the necessary information to the WCB, and then deactivated the coverage as noted above.
The panel noted that this evidence, as set out in the WCB claim file and employer firm account file was confirmed by the testimony of the appellant, and as such, the panel accepts and relies upon it.
In considering whether the employer took action to suppress the worker’s claim, the panel noted that there is no evidence that the employer at any time advised the worker not to make a claim, nor that they threatened or attempted to discourage the worker from making a claim. The evidence rather supports that the employer advised the worker on June 16, 2022 that they did not have WCB coverage and further, that after terminating the worker on June 17, 2022, advised that they understood the worker could make a claim for employment insurance benefits.
The panel does not find that the employer took any action or made any statement to suppress the worker’s claim before it was made, but only advised the worker prior to the claim being made, of the fact that they did not have WCB coverage, which was accurate and true. Further, although the worker advised the employer of their intention to make a claim, the employer did not provide any further response to the worker or otherwise communicate with the worker until after the claim was made. The evidence indicates the employer subsequently ensured that they did have appropriate WCB coverage for the period when the worker was employed and reported the accident and paid their required assessment and late payment penalty in full within days of the claim. The evidence before the panel, when examined as a whole, does not support a finding that the employer firm took action to prevent or discourage or attempt to prevent or discourage the worker from applying for compensation, pursuing an application that has been made or receiving compensation. On the standard of a balance of probabilities, the panel finds that the employer firm has not contravened s 19.1(1) of the WCA and as such no penalty should be assessed against the employer firm in that regard.
The panel also considered whether the evidence supports a finding that the employer acted in breach of s 19.1(2) of the WCA by taking or threatening to take discriminatory action against the worker. The evidence indicates that the worker advised the employer on the evening of the date of accident of their intent to make a WCB claim despite being advised by the employer that they did not have WCB coverage, and that the worker followed up by making a claim the next afternoon. Further, the evidence confirms that the employer advised the worker on the day after the accident occurred that their services were no longer required, noting that the worker could apply for employment insurance. In the same communication with the worker, the employer also indicated that they did not believe the worker injured themself at work. While the record of employment subsequently provided to the worker indicates the worker was let go due to lack of work, and the firm owner stated they had no further work as of that date, they also stated in the hearing that the lack of additional work was not confirmed until some weeks later. This is consistent with the information provided by the firm owner to the WCB Compliance Services as well.
The definition of discriminatory action under s 19.1(5) includes “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”. The evidence here confirms that the worker was terminated on the day that they made a claim to the WCB in respect of an injury sustained the previous day, and that the employer was aware of both the injury and the worker’s stated intention to make a claim at that time that the worker was terminated. The panel finds that this action of terminating the worker meets the definition of a discriminatory action under the WCA. The WCA further sets out in s 19.1(3) that when it is established that discriminatory action was taken against a person after exercising a right under the WCA, the employer is presumed to have taken the discriminatory action contrary to subsection (2). As such, we are satisfied on the basis of the evidence before us that the employer took a discriminatory action against the worker.
The WCA goes on, however, to provide that the employer may rebut that presumption by showing that the action taken was not related to the worker making a claim to the WCB in respect of a workplace accident. In other words, when it is established that a discriminatory action was taken, the onus shifts to the employer to establish it was not discriminatory. In this case, the employer stated that they did not believe the worker’s claim was valid; however, the panel noted the employer did not initiate any process to appeal the WCB’s acceptance of the worker’s claim, and further, that the employer does not acknowledge or accept that the worker even had the right to make a claim to the WCB. The employer confirmed their belief that they were entitled to release the worker from employment for any reason at all, and while the employer testified that they did not have work beyond the date of accident, and this is the stated reason for dismissal in the Record of Employment provided to the worker, the employer also confirmed that they did not know that to be the case until some weeks later. As such, the panel does not accept this to accurately reflect the basis for the termination of the worker in this case.
The panel finds that the employer’s evidence does not establish on a balance of probabilities, that their action, in firing the worker, was not discriminatory. On the basis of the evidence before us, the panel is satisfied that the worker was more likely than not dismissed because they made a claim to the WCB. Therefore, and on the standard of a balance of probabilities, the panel is satisfied that the evidence supports a determination that the employer took discriminatory action against the worker for exercising their right to make a claim under the provisions of the WCA, in contravention of s 19.1(2).
With respect to the amount of the penalty imposed, the panel is satisfied that the WCB correctly applied the provisions of s 19.1(4) and s 109.7(1) of the WCA. Manitoba Regulation 15/2015 establishes that the amount of an administrative penalty in respect of a breach of s 19.1(2) is $4,000 if the employer has no other failures to comply with s 19.1(1) in the preceding five-year period. Here, there is no evidence of any prior breaches of this provision by the firm and therefore the amount of the penalty is correct as assessed.
The employer’s appeal is therefore denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of May, 2023