The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The firm appealed the Workers Compensation Board (“WCB”) decision that the accident employer be assessed a $2,000.00 penalty for contravening s 19.1(2) of The Workers Compensation Act (the "Act"). A hearing took place on September 10, 2025 to consider the appeal.

Issue

Should the accident employer be assessed a $2,000.00 penalty for contravening s 19.1(2) of the Act?

Decision

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

Background

On February 25, 2025, the WCB's Compliance Services provided a Notice of Allegation to the firm alleging it contravened s 19.1(2) of the Act in taking a discriminatory action against a worker when it laid off an injured worker. After investigation, the WCB’s Compliance Services advised the firm 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 $2,000.00. The firm filed an appeal with the Appeal Commission on March 10, 2025 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Section 19.1 of the Act prohibits employers and their representatives from taking action to discourage making claims under the Act. 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) of the Act provides that they shall pay a penalty to the WCB in an amount prescribed by regulation. Manitoba Regulation 71/2001, the Administrative Penalty Regulation sets out the amounts of such administrative penalties and provides that for a breach of s 19.1(1) or (2), the penalty is $4,000 if the firm has no other failures to comply 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 WCB has established Policy 22.20, Compliance and Enforcement (the "Policy") to outline the WCB's approach to enforcing compliance with the Act. That Policy sets out that when the WCB determines that a party under investigation has contravened the Act, it may impose an administrative sanction, which includes administrative penalties, in amounts set out the Administrative Penalty Regulation. The Policy provides that the WCB will impose the penalty set under the Regulation unless there are mitigating factors that warrant a reduction or waiver of the penalty. The Administrative Guidelines to the Policy provide that when determining the penalty, 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 choose to reduce the penalty or waive it in its entirety."

Appellant Firm's Position:

The firm was represented in the appeal hearing by its owner, who made oral submissions on behalf of the firm and offered testimony through answers to questions posed by members of the appeal panel.

The firm’s position is that it should not be subject to a fine for contravention of s 19.1(2) as the worker was laid off or terminated for reasons unrelated to their injury and claim to the WCB. Specifically, the firm's position is that the evidence confirms that the worker was laid off solely due to a downturn in the firm's business which is supported by the business records submitted to the WCB and by the fact the firm has not to date replaced the worker or filled that position.

The firm's position with respect to the penalty imposed is that there should be no penalty, given its position that there was no contravention of s 19.1(2), or alternatively, if the panel finds that there was such a contravention, the penalty should be wholly waived given the firm's lack of prior experience with WCB claim processes, the existence of a business reason for the layoff and the firm's expressed willingness to participate in further WCB-related education programming.

Analysis

The issue in this appeal is whether the employer should be assessed a $2,000.00 penalty for contravening s 19.1(2) of the Act. For the appeal to succeed, the panel would have to determine that the firm did not take or threaten to take a discriminatory action against a person for exercising a right under the Act, or if there was such a discriminatory action, 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 July 2, 2024. The accident claim file evidence indicates the worker filed a claim with the WCB on July 5, 2024, and that by July 15, 2024, the WCB advised the employer of the claim, with the employer's report provided to the WCB on July 16, 2024. The claim file evidence confirms the worker communicated with the employer as to their absence, indicating that the treating physician stated they should not return to their pre-accident duties. Further, the employer indicated to the WCB that it did not have any modified duties available for the worker. The panel noted that this remained the status quo until August 20, 2024, when the worker advised the employer that they were cleared to return to regular duties. Initially, the worker communicated this by text message to the Vice President of the firm, who was their primary contact since the injury, but was advised by that individual that they were away on vacation and the worker should therefore contact the President to let them know. The same day, the worker contacted the President by text message and advised they were able to return to work on August 26, 2024, but were advised there was not work available for them to return to at that time. The next day, the worker sought further clarification, sending another text message to the President asking about their employment status. These conversations took place as outlined below:

August 20 

1:12 PM Worker to President: Hey it's [Worker] & the doctor has cleared me to return to work on Monday Aug 26/24.

2:29 PM President to Worker: Okay thanx for letting us know. We will let u know when we need u to return. Pretty slow right now

August 21 

3:09 PM Worker to President: So then what is the status of my employment there as that was not what I was told until now.

President to Worker: Who did you talk to that indicated your status??

Worker to President: When I texted you yesterday you told me not to come to work until you needed me & when I message [Vice-President] all she ever asked me was when I would be back.

Either way all I want to know is what is the status of my employment??

President to Worker: I believe you walked out on your employment [Worker]. You decided your body was not up to the ability to continue your employment with us. We have had to fend for ourselves for months now which we are doing. Right not there is not enough work for you to come back to. We will let u know when that changes.

Worker to President: So does that mean you are laying me off because I was on WCB & hurt & unable to work so what you decide all I need is you to give me a ROE then.

President to Worker: We will let u know when the position is ready again.

In the hearing, the firm President confirmed that these conversations occurred as reported and that the worker did not return to work thereafter, as they were laid off.

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 panel finds that evidence confirms that the worker was laid off after they advised the employer that they were approved to return to work having recovered from their compensable workplace injury. There is no dispute that the employer was both aware of the worker's injury and the related WCB claim at that time of this conversation. The employer confirmed that in the hearing. The panel is therefore satisfied that the employer's action of laying off the worker falls within the definition of a discriminatory action under s 19.1(5) of the Act.

The Act 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 Act, the employer is presumed to have taken the discriminatory action contrary to subsection (2). The Act 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.

The employer submits that the August 20 and 21 text message conversation does not support a finding that the firm took a discriminatory action. In the hearing, the firm President indicated that the sole reason for the worker's layoff was the lack of available work and noted that they plainly said as much during this exchange with the worker. Further, the employer provided evidence that the firm's sales in the summer of 2024 were less than in the same period in 2023, which the appellant submits supports their position in respect of the reason for the layoff. In the hearing the President also indicated that they have not filled that position in the intervening year, although a new employee has been hired to fill that role as of later this month.

The panel reviewed the text of this conversation and finds that a plain reading suggests there is a link between the worker's absence from work after making a WCB claim and seeking medical treatment for their injury, and the employer's decision to lay off the worker. In the hearing, the firm President stated their view that it was the worker's own decision not to return after their injury, which they acknowledged was the worker's right, but noted that this remained a choice made by the worker, referencing that others in the firm have made different choices, coming back to work even when injured, and stating that the worker could have told their treating physician: 

"…you know what? It's a sore leg. I'll get over it. I'm going back to work.' But instead, [the worker] chose to not. And rightly so. [The worker] has all the rights in the world to -- to make the WCB claim. And you know, we're insured for all that and everything. So, I have no problem at all with [them] doing that. I'm just saying that what I meant when I was making that statement, really, it was [the worker's] choice to leave our employment because of [their] sore leg. …it was [their] choice to -- to leave [their] employment and go with [the] doctor's advice that [they] shouldn't work. And again, there's nothing wrong with that."

While there is also evidence that the firm experienced a downturn in sales in July and August 2024 over the previous year, we do not find that this is sufficient to meet the onus on the employer to rebut the resumption that the layoff of the worker was not related to their exercise of rights under the Act, especially given the examples offered of others in the firm who came to work injured and the references to the worker's choice to not ignore their doctor's advice about a return to work.

Based on the evidence before us, the panel is satisfied that the worker was more likely than not dismissed, at least in part, because of the accident claim they made to the WCB and resultant absence from work due to their injury. The panel is satisfied that the evidence supports a determination on a balance of probabilities, that the employer took discriminatory action against the worker for exercising their right to make a claim under the provisions of the Act, in contravention of s 19.1(2).

With respect to the penalty imposed, the panel is satisfied that the WCB correctly applied the provisions of the Act and the Administrative Penalty Regulation in determining a penalty of $4000 was appropriate. However, the panel does not agree that there are mitigating factors present such that the penalty should be reduced by 50% to $2000. The panel reviewed the provisions of the Policy and considered the Administrative Guidelines in respect of the waiver or reduction of the penalty, as the firm representative argued that the penalty should be reduced by 100% or waived entirely. While the Administrative Guidelines do not bind the panel, we nonetheless reviewed the examples provided in those guidelines as to when it may be appropriate to reduce or waive a penalty. The panel considered that the firm does not agree that laying off the worker in the circumstances described constitutes a discriminatory action and as such, is contrary to the provisions of the Act. Rather, the firm maintains the position that it acted appropriately and solely in consideration of its business interests, in laying off an employee when there was a business downturn. In such circumstances where a firm does not acknowledge its error, the panel does not find that there is a basis for reduction of the statutory penalty. The panel also considered the firm's limited prior history with WCB claims and whether this supports a reduction in the penalty. In this regard, we noted that this is a long-standing business that has had ample opportunity over many years to become familiar with its rights and obligations under the Act as well as the processes and requirements of the WCB. The panel also noted the firm's initial willingness to participate in a further education program was predicated upon a waiver of the penalty by the WCB, which does not reflect a genuine interest in learning more about the system. Finally, we considered the statements in the hearing that lauded employees who go to work even when injured, and the negative tone of the comments as to the worker remaining off work and choosing to follow their physician's instructions. In these circumstances, we are not satisfied that there is a basis to reduce or waive the penalty.

On the evidence before us and applying the standard of a balance of probabilities, we are satisfied that the employer should be assessed a $4000.00 penalty for contravening s 19.1(2) of the Act.

Panel Members

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 25th day of September, 2025