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| Decision No. 1372 09 | 01-Dec-2009 | J. Noble |
| The worker suffered a left shoulder injury in a fall in December 2002. The employer terminated the worker’s employment in June 2005. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for neck and right shoulder injuries and denying LOE benefits after June 2005. On the evidence, the worker did not suffer a neck injury but did suffer a right shoulder injury as a result of the compensable accident. Decision No. 690/07 considered the issue of entitlement to LOE benefits following termination of employment. It noted that termination of employment cannot, in and of itself, result in loss of entitlement to LOE benefits. It found that a two-step analysis is required: 1) whether the workplace injury continues to make a significant contribution to any continuing loss of earnings; 2) to what extent does the worker remain disadvantaged in his ability to match pre-injury earnings. That two-step analysis requires consideration of the circumstances surrounding the termination of the worker’s employment to determine whether the worker’s conduct amounted to a repudiation or fundamental breach of the employment contract. That consideration should not be based on “just cause,” which is a legal phrase specific to the labour relations context. Since just cause is not the appropriate test, the Panel considered what is the appropriate test. The Panel found it helpful and appropriate to look at common law principles of employment law. Those principles, confirmed by the courts, establish that there will be cause to terminate an employee’s employment where there has been serious misconduct, habitual neglect of duty, conduct prejudicial to the employer’s business and where there is good reason for the employer to have lost confidence in the employee’s ability faithfully to discharge his or her duties. Further, the employee’s conduct must be viewed in context, including length of service and discipline history. A similar balancing exercise should be applied in determining whether circumstances giving rise to termination of a worker’s employment have severed the causal connection with the compensable injury. In this case, the worker had been working for the employer for 17 years, a rather long period of service. The disciplinary matters for which the worker’s employment was terminated related mostly to smoking in a non-designated area and leaving for break five minutes early. The most serious matter, for which the worker received a one-week suspension in January 2005, related to behaviour towards visiting customers consisting of sounding the horn or the lift truck and yelling at them to get out of the way. The worker’s behaviour in that incident was not exemplary but there were mitigating factors and the conduct did not result in dismissal at the time. The Panel concluded that the worker’s conduct was not inconsistent with an ongoing employment relationship and that the employer did not have cause to terminate the worker’s employment. The compensable injury was a significant contributing factor to the worker’s loss of earnings after termination of his employment. His bilateral shoulder injury limited his ability to obtain work similar to his pre-accident worker. He was entitled to further LOE benefits. The appeal was allowed in part. |
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| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2009 ONWSIAT 2788 |
