Decision #45/25 - Type: Workers Compensation
Preamble
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 s 19.1(2) of The Workers Compensation Act. A hearing was held March 19, 2025 to consider the firm's appeal.
Issue
Whether or not the accident employer should be assessed a $4,000.00 penalty for contravening s 19.1(2) of The Workers Compensation Act.
Decision
The accident employer should not be assessed a $4,000.00 penalty for contravening s 19.1(2) of The Workers Compensation Act.
Background
On March 8, 2024, the WCB's Compliance Services provided the firm with a Notice of Allegation alleging the firm had contravened s 19.1(2) of The Workers Compensation Act (the “Act”) by taking a discriminatory action against a worker for exercising any right or carrying out any duty under the Act when it pressured an injured worker to resign. After an investigation by the WCB’s Compliance Services, the WCB advised the firm on June 12, 2024 that it determined the firm committed a discriminatory act against a worker contrary to s 19.1(2) of the Act and the firm was required to pay an administrative penalty of $4,000.00.
The firm filed an appeal with the Appeal Commission on July 15, 2024 and a hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, regulations under the Act, and policies established by the WCB's Board of Directors.
Section 19.1(2) provides 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.
Offence
19.1(4) A person who contravenes this section commits an offence.
Where a person commits an offence under s 19.1, section 109.7(1) provides that the panel may impose an administrative penalty. Manitoba Regulation 71/2021 sets out the amount of $4,000.00 for the first offence. The relevant portions of section 109.7(1) are as follows:
Administrative penalty
109.7(1) The board may impose an administrative penalty in accordance with this Act and the regulations on:
(a) a person who makes a false statement to the board
…
(d) a person who contravenes any of the following provisions:
…
(viii) subsection 19.1(1) or (2) (prohibitions re claim suppression).
WCB Policy 22.20, Compliance and Enforcement (“the Policy”) and the accompanying Administrative Guidelines provide available defences to an offence under Section 19.1 of the Act. The relevant portion of the Administrative Guidelines is as follows:
C. CONTRAVENTIONS FOR WHICH DEFENCES ARE AVAILABLE
…
In the case of most contraventions of the Act and regulations, if the WCB is satisfied, on the basis of the evidence it has gathered, that the person under investigation has committed the prohibited act or omission, the WCB will determine that a contravention has occurred.
In some cases however, more is required. For certain contraventions, even when there is sufficient evidence to demonstrate that the person under investigation committed the prohibited act of omission, the WCB will determine that they have not contravened the Act where the evidence also demonstrates, on a balance of probabilities, that they:
• took all reasonable care to avoid committing the contravention; or
• reasonably believed in a mistaken set of facts which, if true, would have rendered the act innocent.
Contraventions where these defences are available:
…
• prohibitions against claim suppression and discriminatory action (subclause 109.7(1)(d)(viii) of the Act);
Employer’s Position
The employer was represented by its Warehouse Supervisor, who provided an oral submission in support of their appeal.
The employer's position was that they acted with good intentions and without malice and that it was the worker’s decision to end their employment with the employer.
The employer stated that they provided the worker with an Offer of Modified Work, which was within their medical restrictions. The worker’s modified duties were data input.
The employer stated that the worker’s medical documentation provided that the worker be accommodated until January 22, 2024 and therefore the employer provided the worker with a Functional Abilities Form for the worker’s physician to complete. The employer’s evidence is that after explaining the Functional Abilities Form to the worker that the worker became agitated and questioned why they could not stay in the data input role. The employer says that the worker demanded that they receive a job working in the office and indicated that they would resign if they did not give them a job in the office.
The employer’s position is that the worker resigned without any external pressure or intimidation. The worker resigned because the employer declined to offer them a permanent office position.
The employer states that the penalty of $4,000 is unwarranted as there was no contravention by the employer of Section 19.1(2) of the Act.
The employer is asking the panel to set aside the decision of the Review Office.
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 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 in breach of section 19.1(2) of the Act; or if there was a breach of section 19.1(2) of the Act, 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 able to make such findings and the employer’s appeal is granted.
The evidence of the employer was that it was the worker’s decision to resign. By contrast, the worker’s evidence to the WCB was that they were told to leave as they refused to do the work offered to them.
The employer’s evidence is that there were two other individuals in the room when the worker resigned. The panel finds that the investigation conducted by the WCB was not complete. The investigator had a brief email correspondence with the worker but there is no evidence before the panel that the worker was interviewed regarding the resignation, nor is there evidence that the other two individuals who were present were interviewed.
The evidence before the panel does not support a finding that there was coercion by the employer in the resignation of the worker. The panel accepts the employer’s evidence that if the medical restrictions had continued they would have continued to offer the worker modified duties. The panel is of the view that it is probable that there was miscommunication and confusion by the worker regarding the request for further medical (namely a Functional Abilities Form).
On the basis of the evidence before it, the panel finds, 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 in breach of section 19.1(2) of the Act. The panel therefore finds that the accident employer should not be assessed a $4,000.00 penalty for contravening section 19.1(2) of the Act.
The appeal is granted.
Panel Members
R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
R. Lemieux Howard - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of May, 2025