The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The accident employer is appealing the decision made by the Workers Compensation Board (“WCB”) that they should be assessed a $4,000.00 penalty for contravening section 19.1(2) of The Workers Compensation Act, C.C.S.M. c. W200 (“WCA”). A file review was held October 5, 2023 to consider the accident employer's appeal.

Issue

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

Decision

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

Background

The worker reported she sustained a left hand injury on November 17, 2022, which she related to the repetitive and forceful grasping performed in her job duties with the Employer. The WCB accepted the claim.

On November 24, 2022, the worker sought medical treatment which resulted in the doctor recording that the worker had left middle and ring finger pain and was unable to work using her left hand.

On December 1, 2022, the worker obtained a doctor’s report from another doctor which stated that the worker was having ongoing issues with her left wrist and fingers, which resulted in physiotherapy and medical restrictions being recommended by the doctor. The worker’s restrictions included 'unable to use left hand'; ‘avoid lifting, carrying, gripping, squeezing; limit pushing/pulling and repetitive movements.'

The Employer arranged modified duties that accommodated the worker's restrictions. The worker’s light or modified duties consisted of ‘picking up garbage, cleaning plates’, ‘pressing a button to make a machine move’, and ‘being placed on the front-end queue’.

On January 5, 2023, the worker's employment was terminated.

As a result of the termination, the WCB’s Compliance Services investigated the worker’s allegations that she was terminated due to her injuries and ongoing work restrictions.

On January 27, 2023, Compliance Services provided the Employer with a Notice of Allegation alleging they had contravened s 19.1(2) of the WCA by terminating a worker’s employment after the worker reported a workplace injury and had returned to work on modified duties. After an investigation by the WCB’s Compliance Services, the WCB advised the Employer on April 18, 2023, that it determined they committed a discriminatory action against the worker contrary to s 19.1(2) of the Act and therefore, they were required to pay an administrative penalty of $4,000.00.

The Employer filed an appeal with the Appeal Commission on May 8, 2023 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 of January 2023 are applicable.

The relevant portions of the WCA are as follows:

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.

Once an allegation against an employer has been established pursuant to section 19.1(2), the employer bears the onus of rebutting the presumption of a discriminatory action by showing that the action taken by the employer was not related to the worker’s exercise of their rights.

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).

The WCA expressly defines ‘discriminatory action’ and provides the following definition.

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.

Furthermore, if a discriminatory action is established, and the employer is unable to rebut the presumption, then they would be found to have committed an offence under the WCA:

Offence 1

9.1(4) A person who contravenes this section commits an offence.

Offences under section 19.1(1) or (2) of the WCA have a corresponding penalty.

Administrative penalty 

109.7(1) The board may impose an administrative penalty in accordance with this Act and the regulations on:

… 

(d) a person who contravenes any of the following provisions: 

… 

(viii) subsection 19.1(1) or (2) (prohibitions re claim suppression),

The amount of the penalty is set out under the Administrative Penalty Regulation, M.R. 71/2021 which provides the following tariff.

Administrative penalties — graduated penalty 

1 The administrative penalty for the contravention set out in the provision of the Act listed in Column 1 of the following table is the amount listed opposite in Columns 2, 3 and 4 for contraventions that resulted in an administrative penalty within a five-year period.

109.7(1)(d)(viii) Prohibitions re claim suppression (contravention of s. 19.1(1) or (2))

Section 1 sets out the amount of $4,000 for a first contravention that resulted in an administrative penalty within a five-year 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, Compliance and Enforcement ("Policy"), outlines the authorities, principles, and processes for responding to allegations or suspected cases of program abuse, including claim suppression.

The Employer’s position

The Employer was represented by an advocate, who provided a written submission to the appeal panel. The advocate stated the worker "was not terminated because of her WCB work injury. In fact it had nothing to do with her employment termination." The advocate submitted:

In this case, the injured worker's employment was terminated directly because of her violation of [the Employer's] food safety policy. In particular, she was observed (and admitted to) chewing gum on the plant's production floor, which was a direct contravention of [the Employer's] Employee Conduct policy…it is worth noting that the worker was aware of this rule yet still violated it. It is also worth noting that this rule is a fireable offence. In fact, [the Employer's] Employee Conduct policy states that a failure to strictly adhere…can 'result in the immediate termination of employment'."

During the course of the investigation by the WCB's Compliance Services, the Employer provided two different reasons as to why the worker's employment was terminated.

The first reason is an allegation by the Employer that the worker was unable to reach the work requirements set out by the Employer. This allegation arises primarily from the Employer’s Human Resource Advisor by way of telephone interview on February 17, 2023. In that interview, the Human Resource Advisor denied that the worker's employment was terminated due to reasons relating to her WCB claim, or due to the work restrictions placed on her arising out of her injuries.

Instead, the Human Resource Advisor emphasizes that the basis for the termination of the worker's employment arose initially from the worker’s inability to meet the Employer’s performance expectations and then later on to issues relating to her attitude.

The Human Resource Advisor alleges that the worker, prior to the commencement of their employment, promised or guaranteed skills that were not present when the worker actually commenced work for the Employer. The Human Resource Advisor justifies the Employer’s position by outlining the different ways that the worker was unable to keep up with line speeds, and how the worker was ‘missing pieces in the cutting floor’.

The Human Resources Advisor states that the Employer has taken steps to train and re-train the worker, moving her into different positions during the worker’s probationary period and even providing detailed training records (pre-injury) on the worker’s daily progress.

The Human Resource Advisor states:

“But unfortunately, she didn't realize and take ownership for her own work performance that she wasn't meeting the expectations. We constantly had to have somebody training with her, we always needed to have somebody being -- working with her, when she should have been able to do the task on -- alone, based on the amount of time and resources that we've allocated to her to be successful”.

On December 29, 2022, the Human Resource Advisor states that he met with the worker, along with the union shop steward, and informed the worker that the Employer was not satisfied with the worker’s job performance. Furthermore, the Human Resource Advisor emphasized that during this meeting, they discussed health and safety policies, as well as attendance management policies of the Employer.

The Human Resource Advisor alleges that the performance issues occurred prior to and continued after the worker reported her injury. However, the Human Resource Advisor, despite being able to provide detailed assessment of the events and issues prior to the injury occurring, appears to have less knowledge of specific performance issues post injury, including not initially knowing what the worker’s work restrictions are. The Human Resource Advisor states that the first time he was made aware that the worker was on light duties was through a December 20, 2022 email.

While the Employer has said they had concerns with the worker's performance after her injury they did not have detailed assessments of specific performance issues post-injury. The Employer relies upon a series of internal emails that discuss concerns with the worker's ability to meet the requirements of the modified work duties. The Employer also provided a Training Record, however, the entries which correspond with the injury date (and moving forward) only state ‘on light duty. Don’t use left hand.’ And ‘Dec 20, 2022 ‘Still on LD’. The only material indication on the record appears to pertain to the worker’s ‘angry behavior’ on December 23, 2022 and the chewing gum incident on January 4, 2023.

The second reason plead by the Employer as to why the worker's employment was terminated was the January 4, 2023 chewing gum incident where the worker was observed and admitted to chewing gum on the production floor. As noted by the Employer, their Employee Conduct policy states: "No food, drinks or tobacco, candy, cough lozenges or gum products are allowed in production areas or maintenance shops.” The Employer’s policy continues on to state that a failure to strictly adhere to the policy can "result in immediate termination of employment."

In conclusion, the Employer’s position is that it did not contravene the WCA. The worker was terminated because the worker committed a violation of the employer's food safety policy, along with a number of issues that the Employer alleges arise out of the worker’s work performance, and attitude. Thus, according to the Employer, it was entitled to exercise its right to terminate the worker for just cause.

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. For the reasons that follow, the panel is unable to make such a finding.

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

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

o Advised the Employer of her workplace injury on November 17, 2022, pursuant to section 17 of the WCA;

o Sought medical attention on November 24, 2022, pursuant to section 22(1) of the WCA;

o Reported her injury to the WCB, pursuant to section 19(1) of the WCA;

o Reasonably followed medical advice to limit the use of her left hand and to apply ice on her hand, pursuant to section 22(1) of the WCA;

• The Employer was aware of the worker's injury on November 17, 2022 and was also aware that she sought medical advice on November 24, 2022, resulting in the worker being placed on light/modified duties;

• On January 5, 2023, the Employer terminated the worker's employment, which amounted to a discriminatory action as defined in section 19.1(5) of the WCA;

• The termination of the worker's employment resulted in the application of the section 19.1(3) rebuttable presumption that the Employer's action contravened section 19.1(2) of the WCA.

Employer’s duty to rebut the presumption of discrimination

Section 19.1(3) provides the Employer the opportunity to rebut the presumption by showing that the termination of the worker's employment was not related to the worker's workplace injury or exercise of her rights under the WCA.

The panel is satisfied that the evidence supports that the Employer had concerns with respect to the worker's work performance prior to the worker’s injury. The panel notes, however, that apart from a few internal emails discussing the worker’s performance and attitude, there is a lack of detailed assessments, which would have measured the worker’s ability to meet the requirements of her modified/light duties.

The Employer, in addition to the transcript of the interview with the Human Resource Advisor, submitted a series of emails before and after termination of the worker's employment. There is evidence to show that the Employer did note and was unsatisfied with the worker’s abilities while on modified/light duties.

The Employer's Production Supervisor was interviewed on February 21, 2023 by WCB’s Compliance services and provided the following evidence:

• The worker was qualified to perform the work, and after she qualified, she was placed on light duties; 

• The worker was on light duties for 40 to 50 days; 

• While the worker was on light duties, the Production Supervisor did not notice any improvement, and therefore requested that her probationary period be extended;

The Production Supervisor's evidence indicates that the Employer had concerns about the worker’s performance when performing light/modified duties, as from the Employer’s point of view, the worker appeared ‘unwilling to work’.

On December 20, 2022 the Production Supervisor sent an internal email (which was also sent to the Human Resource Advisor) indicating the following:

“[Worker] cannot work by herself at all after 4 weeks of qualifying period. Just After the week she got qualified she is on light duty (more then 1 month now). She is not showing any chances of improvement, not willing to work n not doing anything worthy for the department. can something be done as she is still on probation period. [sic]”

On the same day, another internal email from another employee was sent to the Employer’s decision makers (including the Production Supervisor and the Human Resource Advisor) stating the following:

“Their probationary period is almost over and these EEs do not have the attitude or desire to even actually try to do their jobs.

Please advise on next steps ASAP as we are running out of time.”

More pertinent to this issue, is an internal email sent on December 21, 2022 from the Human Resource Advisor to the Employer’s decision makers (which was sent before the worker was cited for chewing gum) stating:

“Good morning,

Their probationary period is set to end on December 26, 2022. I have requested a 3 month extension for their probationary period from the Union to ensure we don't miss that deadline (If agreed upon extension will be until March 26, 2023).

This will give us time to discuss and make a game plan. A Final intervention was held on September 27, 2022 and I believe that we should be discussing termination and sending them back home, but we need to have further conversation and should do this In the New Year. [sic]” [emphasis added]

On January 5, 2023, an internal email was sent by the Human Resources Manager to the Employer’s decision-making team which states the following:

“FYI Team - per prior conversations before holidays and Tuesday…This is again [worker]. Caught chewing gum in FEK ramp area last night by Supervisor and admits to it In written Q & A.

Final Intervention… did not go well the week before Christmas. [the Human Resource Advisor] had a very clear follow up chat the following week which was argumentative but he did say in the end she understood there were persistent performance issues in multiple departments and attitude issues and that the 3 month extension was standard practise.

Keep In mind we can't letter probationary employees; she has already had multiple final interventions and qualification period extensions in every area attempted, a potential time theft concern where a friend scanned her out half day after she left the Plant sick which was caught by Supervisor and investigation occurred, 4 position moves, a probationary extension, an over and above secondary meeting to debrief on that probationary extension, is currently on alternate work restrictions and hasn't been on a knife due to the wrist injury in a very long time (might be WP violation?), and now HACCP Issue for chewing gum on the floor.

Unfortunately we have gone far above and beyond for this employee despite no observable attempts to improve, at this time I recommend parting ways. … [sic]” [emphasis added]

The evidence provided in this appeal demonstrates how the Employer, in deciding to terminate the worker, included in its decision-making process, the worker’s limitations arising out of the worker’s needs to be placed on modified duties. It is evident from the emails provided by the employer, and the interview with the Production Supervisor, that the Employer's concerns surrounding the worker were, from the Employer’s point of view, exacerbated by the worker’s work limitations. Further, although the Employer has referenced the chewing gum incident of January 4, 2023 as the basis for the termination of the worker's employment, the emails make it clear that the Employer intended to terminate the worker prior to that incident.

That is not to say that this panel found that the Employer’s decision to terminate the worker was entirely due to the worker’s work limitations, rather it was partially due to these concerns.

The WCB’s Compliances Services in its Final Investigation Report dated April 18, 2023 (“Report”) as well the WCB Review Office Decision of June 21, 2023 both apply the ‘taint principle’ in arriving at their decision. They have defined this principle to mean that an employer’s decision to terminate a worker’s employment is “tainted” if any part of the employer’s decision related to the worker exercising a right or carrying out a duty under the Act. In the case of this worker, the worker's workplace injury and later performance of medically approved modified duties.

Furthermore, the Report elaborates that the improper motive need not be the dominant motive or reason for the termination, but rather that it was partially motivated. The Employer had to prove that none of its decision-making process involved motivations relating to the worker’s WCB claim or the worker’s duties arising from the WCA in order to rebut the presumption. Both the WCB’s Compliance Services and the WCB Review Office found that the Employer failed to rebut the presumption as required by 19.1(3) of the WCA. This panel agrees that the Employer failed to rebut the presumption as the evidence supports the Employer's decision to terminate the worker's employment was related, in part, to the worker's workplace injury and modified duties.

Based on the foregoing, the panel finds on a balance of probabilities, that the Employer took 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 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

R. Mamucud, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Mamucud - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of November, 2023