The Appeal CommissionThe Workers Compensation Act of Manitoba

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 September 2, 2025 to consider the firm's appeal.

Issue

Whether or not the accident employer should be assessed a $4,000.00 penalty for contravening s19.1(2) of The Workers Compensation Act.

Decision

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

Background

On December 13, 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 formally laid off an injured worker.

After a number of delays in communication from the employer, an investigation by the WCB’s Compliance Services (“CS”) was completed. The WCB advised the firm on April 1, 2025 that it had determined the firm committed a discriminatory act against a worker contrary to s 19.1(2) of the Act. The firm was therefore required to pay an administrative penalty of $4,000.00.

The firm filed an appeal with the Appeal Commission on April 15, 2025 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 WCB’s Board of Directors.

The relevant sections of the Act provide 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.

As set out in s. 19.1(5), discriminatory action includes any act or omission by an employer that adversely affects a worker’s employment, including a layoff.

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

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 for the first offence. The relevant portions of section 109.7(1) are as follows:

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 offense under section 19.1 of the Act. The relevant portion of the Administrative Guideline 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 at the hearing by an employee who had been assisting them with health and safety issues for the two months (approximate) preceding the hearing. The representative made an oral submission in support of the employer’s appeal.

The employer’s position was that the worker was laid off due to a shortage of work, and not as a result of the worker’s accident and injury of August 27, 2024. In support of the employer’s position that the worker had been laid off due to a shortage of work, the employer advised that another employee was laid off at the same time as the worker, also due to a shortage of work.

The representative also submitted at the hearing that the employer was not aware of an ongoing WCB claim when they made the decision, on the evening of September 5, 2024, to lay the worker off. The employer’s evidence was that they believed the worker’s WCB claim had been resolved in its entirety when the worker returned to work on September 3, 2024 after being medically cleared to do so.

The employer representative also took the position that the worker’s symptoms as reported after September 3, 2024 were likely the result of a previous workplace injury, unrelated to this employer, given that the reported symptom area then included the worker’s back, whereas the initial report of the accident which took place on August 27, 2024 identified only a leg/knee injury.

The employer made no submissions during the hearing regarding the amount of the penalty and there is no reference in the file material indicating inquiries from the employer during the investigation process as to the amount of the penalty.

Analysis

The issue before the panel is whether or not the employer should be assessed a $4,000 penalty for contravening section 19.1(2) of the Act. For the employer’s appeal to be successful, the panel must find 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. For the reasons that follow, that panel is not able to make such a finding and the employer’s appeal is therefore not granted.

Dealing first with the employer’s claim that the worker was laid off due to a shortage of work, the panel accepts the evidence on file that the employer’s seasonal slow-down typically occurs in November of each year. The employer advised the WCB CS investigator during interviews that in 2024, the seasonal slow-down occurred earlier than usual.

The employer was invited during the investigation to provide CS with records and evidence confirming a shortage of work experienced by the business at the time the worker was laid off. The employer provided the ROE’s of both workers who had been laid off at the relevant time, listing the reason for the lay-offs as “shortage of work”. No other records were provided.

The panel has reviewed the ROE’s issued for the worker and for the other individual laid off due to “shortage of work” and notes that there was no reduction in the hours of either worker for any of the pay periods preceding the worker’s injury and the lay-offs.

The panel also notes the employer’s statements to the CS investigator on November 15, 2024 that at least one further worker was hired after the worker’s lay-off.

On the evidence before us, the panel concurs with the conclusion of the CS investigator that the worker was not laid off due to shortage of work.

The panel notes the employer also claimed during the investigation process that the worker had been let go due to attendance and performance issues, in addition to a shortage of work. The employer representative acknowledged at the hearing that there was little evidence to support this position. For the sake of completeness, the panel notes our agreement with CS investigation findings that the worker was not laid off for performance issues. The worker’s ROE reflected no attendance issues pre-dating his injury, and interviews with the worker and employer reflected positive reviews of the worker’s performance.

Turning next to the employer’s argument that they were unaware of a continuing WCB claim by the worker at the time the decision was made to lay off the worker, the panel finds that the evidence as a whole does not support such a conclusion.

The file evidence, including interview notes and copies of text messages, confirms that the worker returned to work after the August 27, 2024 accident and completed shifts on September 3 and 4, 2024. The employer submitted their WCB incident report on September 4, 2024.

On September 5, 2024, the worker told his supervisor that he was unable to finish the day after working with a quick cut saw for approximately 30 minutes, and left work for further medical treatment. The supervisor confirmed these events in a CS interview on September 11, 2024, and indicated that the worker complained his back had been hurting since the accident injury.

The employer’s evidence was that they made the internal decision to lay off the worker on September 5, 2024, a claim which is supported by text messages between the employer and an employee exchanged that evening. The worker was told by text message approximately 26 minutes after the internal text discussion that he would not be needed at work the next day, but was not told until September 19 or 20, 2024 that he was being laid off, based on the file evidence.

The evidence as a whole supports a finding that the employer was aware of the worker’s WCB claim at the relevant times. The panel agrees with the conclusion of the WCB CS investigator that the employer and their relevant representatives were aware of the worker’s continuing WCB claim at the time the decision was made to lay the worker off.

With respect to the employer’s related argument that the worker’s symptoms after September 3, 2024 may not have been the result of the accident injury, the panel notes that the worker’s claim was accepted by WCB and its correctness is not before us. The employer is not entitled to contravene the discrimination provisions of the Act because they disagree with the decision of WCB.

That said, the panel finds the employer’s suggestion the worker’s symptoms after September 3 were unrelated to the accident to be unlikely, given the nature of the accident and the proximity in time between the injury and the reported symptoms.

The evidence before the panel supports the WCB CS investigation finding that the employer did take discriminatory action against the worker for exercising a right under the Act in breach of s. 19.1(2) of the Act. The employer has not proved, in accordance with s. 19.1(3), that the lay-off of the worker was entirely unrelated to the accident, and they have not established a defence to the contravention of s. 19.1(2) as described in WCB Policy 22.20.

On the standard of the balance of probabilities, the panel finds that the accident employer has contravened s. 19.1(2) of the Act, and the penalty in the amount of $4,000 is correct as assessed by WCB. The employer’s appeal is therefore denied.

Panel Members

M. Murray, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of October, 2025