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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 601 11
2/12/2013
R. McCutcheon - M. Christie - J. Crocker

  • Class of employer (health care operations)
  • Class of employer (domestic services)

The employer was a major provider of home care services, including nursing services, home support services and rehabilitation services. The employer appealed a decision of the Appeals Resolution regarding classification of certain of its employees for the years 1996 to 2000.
The Board classified these employees in Rate Group 857 for nursing and other health care operations. The employer submitted that these employees should be classified in Rate Group 944 for domestic services.
The Panel noted that there were significant changes in the rate groups by the Board in October 1999, applying prospectively as of January 1, 2000.
There was a Board document entitled "Clarification of Health Care Policies," which is contained in an Appendix to the Employer Classification Manual. The employer submitted that this document is not merely a clarification of the Board policies but, rather, that it substantively alters the application of the classification documents in issue in this case. In the circumstances, the Panel did not rely on this document in its interpretation of the classifications in issue.
The employer also made submissions about delays in processing the employer's objections. However, the Panel noted that delay, as discussed in Decision No. 1194/04I, is limited to the retroactivity of audit findings where there is an unreasonable delay between the audit notice and the audit decision.
In Decision No. 601/11I, the Panel determined that it would consider classification of competitors of the employer. The Panel noted that competitors were classified in both of the rate groups in issue.
Among the amendments to the classifications was that, prior to the amendments in 1999, attendants were specifically included in Rate Group 944 and job duties for this occupation included physical care. The Panel considered each of the various jobs at issue and, considering the best fit, determined the classification for these jobs for the years 1996 to 1999 and for the year 2000. This resulted in some changes of classification to Rate Group 944.
The appeal was allowed in part.