- Construction
- Employer (construction)
- Intervening causes (conduct of worker)
- Re-employment (construction industry)
- Re-employment (obligation to re-employ)
- Re-employment (termination)
- Loss of earnings {LOE} (termination of employment)
On October 1, 2018, the worker developed acute right wrist and elbow pain, and could no longer continue working. On October 2, 2018, the worker did not report for work. The employer terminated the worker's employment, stating it was unaware of the injury at that time. The worker appealed and sought an order that the employer breached its re-employment obligation, and sought entitlement to LOE benefits following his workplace injury.
The appeal was allowed, in part. Section 41 of the WSIA provides that an employer is required to "re-employ" a worker following an injury. As some subsections of WSIA section 41 do not apply to the construction sector, similar re-employment obligations are prescribed in O. Reg. 35/08, Return to Work and Re-employment – Construction Industry, and OPM Document No. 19-05-03, "Re-employment in the Construction Industry." An employer may terminate a worker within the period of the re-employment without breaching its re-employment obligation, provided that the termination was unrelated to the injury.The Panel found there was insufficient evidence on which to conclude the employer must have known about the injury on October 1, 2018. The Panel did not agree that the circumstances (the possibility of an injury) gave rise to some sort of obligation for the employer to "investigate" whether a work-related injury had occurred. The WSIA sets out that workers are obligated to report work-related injuries. The worker had prior WSIB claims and would have been aware of those obligations. The termination of the worker's employment was not related to the injury. The employer did not breach its re-employment obligation.With respect to entitlement to LOE benefits after termination, the question of causation under section 43 asks: after the termination, did the worker continue to have a loss of earnings that were "as a result of" the workplace injury? This involves two questions: 1) Were the circumstances of the termination such that it should be viewed as an intervening event, for which the worker should be held responsible? 2) Did the worker have an ongoing work-related impairment after the termination that would hamper the worker's ability to earn pre-accident wages in the open labour market?It was not reasonable to conclude that the worker knew, or ought to have known, that if he failed to show up for work on October 2, 2018, his employment would be terminated. The worker was never disciplined for lateness or absenteeism, or formally warned that attendance problems could lead to his dismissal. There was no evidence of any "last chance" type of communication to the worker. The worker was not responsible for bringing about an intervening event (the termination) that ended any chance of suitable work with the employer after the injury. The employer did not attempt to re-start a process of ESRTW. The evidence showed the worker likely had a loss of earnings following his injury and the termination of his employment, caused by ongoing symptoms and restrictions from his work-related right arm injuries. The worker was entitled to LOE benefits following his injury and termination.