A recent ruling by the Workplace Safety and Insurance Board (WSIB) relating to Policy 19-02-09, (Re-employment Obligations) has provided greater clarity on the obligations of employers when an employee is found to have misrepresented the extent of their work-related injury. The ruling also offers valuable guidance for how to handle cases where employees are suspected of dishonesty regarding their injury claims.
What Happened?
An employee injured themselves at work and began receiving compensation benefits for lost earnings. After a brief period on modified duties, the employee claimed they were fully disabled and unable to return to work. However, while the employee was off work, the employer continued to engage with them in an attempt to bring them back on modified duties, and the WSIB was also involved in helping manage the case.
During this period, the WSIB conducted a surveillance investigation into the employee’s activities. What they found raised red flags: the employee was repeatedly seen engaging in physical activities that contradicted their claims of being too injured to work. As a result, the WSIB concluded that the employee had been misrepresenting the extent of their disability and was, in fact, capable of returning to their pre-injury job. This finding led to the employer’s obligation to rehire the employee, but the WSIB also demanded that the employee repay the benefits they had been receiving since the surveillance began.
The Termination
Once the employer received the WSIB’s findings, they launched their own internal investigation into the employee’s conduct. The employer made multiple attempts to meet with the employee, offering them the chance to explain the discrepancies between their injury claims and their actions, as observed in the surveillance footage. The employee, however, refused to cooperate, asserting that the WSIB’s conclusion was inaccurate and refusing to provide any further medical documentation to support their claims.
As the employee refused to engage, the employer ultimately decided to terminate their employment. Over a year later, the employee claimed that their dismissal was directly related to their injury claim and the WSIB benefits they had received. They also noted that they had no prior disciplinary issues before the termination.
The Board’s Findings
After thoroughly reviewing the case, the WSIB’s re-employment team concluded that the employer had not violated its re-employment obligations. The team examined the evidence presented by the employer, which included detailed documentation of their internal investigation, along with policy statements emphasizing the importance of honesty in the workplace. Additionally, the employer was able to provide evidence of other employees being terminated for dishonesty in similar situations, further supporting their decision.
The WSIB clarified that their role wasn’t to determine whether the employee’s termination was justified from a disciplinary perspective. Instead, their focus was on whether the termination was connected to the employee’s injury or the benefits they were receiving. The employer provided sufficient evidence to show that the termination was due to the employee’s refusal to cooperate and dishonesty during the investigation, not because of their work injury or benefits claim.
Key Takeaways for Employers
This decision serves as an important reminder for employers to keep thorough documentation of their accommodation efforts and any misconduct during the process of managing a work injury claim. Employers must ensure that the reasons for termination are unrelated to the employee’s injury or the claims they made for compensation benefits. If an employee’s actions, such as dishonesty, are the real reason for the termination, it’s important to have solid evidence to back that up.
The case also reinforces the idea that the mere fact that an employee is receiving WSIB benefits or has an ongoing injury claim isn’t enough to suggest that any termination is automatically related to their injury. Employers need to prove that the termination was based on legitimate, non-discriminatory reasons, such as failure to cooperate during an internal investigation.
In short, the WSIB decision underlined that employers have a responsibility to follow through on their re-employment obligations, but they are not required to overlook dishonest behaviour. When dealing with workplace injuries, it’s essential to maintain transparency, fairness, and a strong rationale for any employment decisions made.
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