Workers' compensation regime determined injured worker was accommodated with suitable work
The Ontario Human Rights Tribunal has dismissed a worker’s discrimination complaint that was essentially the same as a workers’ compensation action that found no discrimination.
The worker suffered a right shoulder injury at work with Bolton, Ont.-based concrete contractor Alpin Forming in 2013 and successfully applied to the Ontario Workplace Safety and Insurance Board (WSIB) for workers’ compensation benefits.
Alpine Forming offered the worker modified and sedentary duties, which the worker performed for a period of time. However, the worker expressed concerns over risks of slipping and falling in the muddy conditions at the worksite. As a result, the company arranged to have the worker participate in a home study program overseen by its health and safety manager.
A WSIB return-to-work specialist met with the worker and Alpine Forming on Feb. 22, 2013. They determined that all work could be accommodated for the worker’s shoulder limitations. The following month, a WSIB case manager determined that the modified work was “safe and suitable as it is within the restrictions” noted in the worker’s report.
Modified work suitable
In April 2013, the return-to-work specialist noted that all the worker’s work was self-paced and Alpine Forming encouraged the worker to ask for assistance with any tasks that exceeded his abilities. The company also provided transportation from a train station to the worksite, while the worker drove himself to and from the train station.
The worker was diagnosed with post-traumatic stress disorder (PTSD) and the WSIB granted him temporary benefits in June 2013. The WSIB reiterated that the modified work was suitable and within the worker’s restrictions and found that the worker’s concerns over slip and fall hazards had been addressed.
A subsequent decision from the WSIB determined that, with existing medical supports, the worker wasn’t totally disabled from returning to any time of work.
Another meeting with the return-to-work specialist was scheduled for Feb. 18, 2014, but it was cancelled because Alpine Forming advised that “there were outstanding issues with this worker and… there is no need for a meeting because the worker is not showing up to work, not calling in for absences, or showing up late.” The company had a policy requiring workers to notify it if they were going to be late or miss work.
Worker’s employment terminated
Alpine Forming terminated the worker’s employment on Feb. 18 for breaching the policy for failing to notify the company of his absences and failing to provide medical support for his absences.
The worker claimed that Alpine Forming breached its re-employment obligations under the Ontario Workplace Safety and Insurance Act, 1997 (WSIA). However, the WSIB ruled that the company followed its established policy on absenteeism as well as the collective agreement and terminated the worker because of his failure to follow the rules. The worker’s termination was not because of his injury or his benefits claim, said the WSIB.
The worker appealed the decision, but an appeals resolution officer agreed that the company didn’t breach its re-employment obligations and fully co-operated in the return-to-work process. The officer also found that the company accommodated the worker’s restrictions and terminated the worker in line with its established practice of discipline.
The worker further appealed to the Workplace Safety and Insurance Appeals Tribunal (WSIAT).
Discrimination complaint
On Jan. 23, 2015, the worker filed a human rights application alleging that Alpine Forming discriminated against him because of a disability stemming from a workplace injury when it fired him. He argued that the company failed to accommodate him through scheduling, discipline, and the termination.
The Ontario Human Rights Tribunal (HRTO) deferred the matter until after the worker’s appeal with the WSIAT was completed.
On March 9, 2018, the WSIAT found that Alpine Forming did not breach its re-employment obligations when it terminated the worker’s employment, as the termination was not related to the workplace accident and injury.
Following the decision, the HRTO re-activated the worker’s human rights application. However, Alpine Forming argued that the facts and allegations in the workers WSIB application were the same as in the HRTO application, so the latter should be dismissed for duplication.
The HRTO noted that s. 45.1 of the Ontario Human Rights Code allows it to dismiss an application if the substance of the matter has been appropriately dealt with in another proceeding. It also noted that the WSIB and WSIAT have concurrent jurisdiction to decide human rights issues and apply the code under the power prescribed by the WSIA. The HRTO found that a WSIAT hearing and a WSIB decision are proceedings as defined by s. 45.1 of the code.
The HRTO noted that in both his WSIAT action and his human rights application, the worker alleged that he wasn’t accommodated with respect to his injury and PTSD, and then was harassed and terminated. The WSIB and WSIAT both determined that the modified duties offered to the worker were suitable and he was accommodated, said the HRTO.
The HRTO determined that the same issues in the human rights application were dealt with in the WSIAT decision, which found that the worker was terminated from his employment for a non-discriminatory reason – his failure to comply with the employer’s attendance policy. In addition, the worker’s appeals through the workers’ compensation process allowed him an opportunity to address the allegations, said the HRTO.
The HRTO dismissed the worker’s human rights application as being essentially the same as his workers’ compensation action, which was dealt with already by the WSIB and WSIAT. See McNeil v. Alpine Forming Co. Ltd., 2024 HRTO 383.
