Worker didn't follow policy; didn't reveal accident until after WSIB claim accepted
An Ontario worker’s failure to follow the policy and procedure for reporting her own workplace injury broke the employer’s confidence to the point where dismissal was justified, the Ontario Superior Court of Justice has ruled.
The 56-year-old worker was the health, safety and training manager for Patene Building Supplies, a provider of interior and exterior building products with several branches in Ontario and one in Winnipeg. Hired in 2006, the worker was responsible for providing leadership in health, safety, and operational training.
The worker’s duties included ensuring that the company met its compliance requirements under applicable legislation such as the Ontario Workplace Safety and Insurance Act (WSIA), ensuring that Patene had a system to investigate all workplace accidents, and establishing policies and procedures to minimize accident costs and workers’ compensation claims. She also had to administer Patene’s accident reporting policies.
On March 28, 2019, the worker was at Patene’s branch in Brantford, Ont., when she slipped and fell in the parking lot, landing on her left hip and lower back. She didn’t feel any pain or think it was serious at the time, so she didn’t report the accident. She also claimed that she felt too embarrassed to report it.
According to the worker, she told the traffic manager at the Brantford branch that she had fallen and the potholes in the parking lot needed to be filled, but he later claimed that she didn’t tell him about it at the time. There was no record of any arrangements to fill in potholes.
Form completed months after accident
The worker started feeling discomfort in her back in April and, on May 9, she completed and signed one of Patene’s forms for reporting a minor accident or injury. She noted on the form that it would be on the monthly report of WSIB claims and internal incidents for July. However, the accident did not appear on the report for July or August.
The worker saw her rheumatologist in July for “acute onset lower back pain” and had a CT scan on Aug. 14 that revealed degenerative changes and degenerative disc disease. She later went to the hospital with chronic lower back pain.
On Sept. 13, the worker completed an employer’s accident reporting form for the Workplace Safety and Insurance Board (WSIB) with an accident date of July 21. Her incident then appeared in the branch report for August and September, which the worker provided to the owners on Oct. 2. However, a chart associated with the report showed zero WSIB reportable injuries at the branch in 2019.
The WSIB allowed the worker’s claim on Sept. 17. A WSIB employee asked her for a witness statement to confirm the fall and the worker asked the traffic manager in Brantford to send an email, which she dictated to him. The traffic manager later said that he wrote the email for her because she was a supervisor and he would be uncomfortable disobeying her.
The worker had a verbal altercation with Patene’s controller on Oct. 30 and the owner investigated. During the investigation, Patene discovered that the worker had made a WSIB claim. The owner asked to see the company’s complete WSIB file, but the worker only provided the May 9 reporting form and a functional abilities form, not the WSIB’s decision letter approving her claim.
Termination for dishonesty, conflict of interest
Patene determined that the worker had been dishonest in hiding her claim and it was a conflict of interest to submit a claim herself, given her position. It was also a breach of her fiduciary obligations and was “potentially fraudulent conduct,” according to Pantene.
Pantene terminated the worker’s employment for cause on Dec. 18 based on its loss of trust in the worker. The worker sued for wrongful dismissal.
The court found that the worker’s credibility was lacking, as she was an experienced health and safety manager who was familiar with the process of reporting workplace accidents to the employer and to the WSIB. Her claims that she was too embarrassed to report the incident was inconsistent with telling the traffic manager, and the traffic manager’s assertion that she didn’t mention added more inconsistency, the court said.
The court determined that the worker was untruthful about reporting the incident in a timely manner as required by Patene’s policies, and the worker also used her influence over the traffic manager to make it seem like she reported the incident properly. This was significant misconduct, said the court.
The court also found that the worker was dishonest when she made a WSIB claim without including the accident in the branch safety reports, and she only reported it after her WSIB claim was allowed. This was also a breach of Patene’s accident reporting policies.
Expectation of trust
“It's reasonable to expect that for somebody in such a position [of health and safety manager], you will able to trust that person,” says Sharaf Sultan, principal of Sultan Lawyers in Toronto. “But my sense was that the court was not impressed in part because it felt the [worker] was almost pathologically lying.”
The worker also violated the WSIA, as she didn’t report the accident to the WSIB on behalf of the employer until Sept. 13, weeks after she received medical treatment related to the accident in August. This was also serious misconduct for someone whose job was to protect Patene from sanctions by ensuring accidents were reported promptly, said the court.
In addition, the court found that the worker should have known that reporting the accident in which she was involved to the WSIB as the employer’s representative was a conflict of interest. Putting herself in that position while denying that it was a conflict was “a significant reason why the [company] was correct to have lost confidence” in the worker, said the court, adding that the worker’s failure to provide all of the WSIB documents to the owner was an attempt to conceal information about her claim.
The fact that the worker’s role with Patene was directly related to the nature of the misconduct was a big part towards finding just cause, says Sultan.
“The court made explicit mention of the health and safety nature of the role and said that an employer cannot be expected to employ the worker in this role and even it should not be,” he says. “In the court’s opinion, a person who engages in the conduct, which the court accepted actually happened, cannot carry out that role.”
Worker aware of responsibilities, procedures
The court noted that it wasn’t just a one-off lapse in judgment, as the worker’s failure to follow accident reporting policies stretched over several months and culminated in her hiding information from the owner. Given that she was directly responsible for administration of Patene’s health and safety policies, she was well-aware of what she was required to do, said the court.
The court determined that Patene’s decision to terminate the worker’s employment was proportionate to her misconduct and dismissed the worker’s wrongful dismissal action.
Had the worker admitted to her misconduct when confronted with it and apologized, she might have had a better chance of success in overturning dismissal for cause, according to Sultan.
“Termination for cause can carry a stigma and might make it harder to find another job, so courts don't tend to want to hurt people, financially or reputationally,” he says. “So to terminate for cause, it means the court was really not impressed [with the worker’s dishonesty], combined with the safety element.”
“The decision might have gone the other way, but I think it still would have been borderline because of the health and safety nature of it,” adds Sultan.
In circumstances like this where the employer is in a good position to prove just cause, it’s still a good idea to proceed methodically, says Sultan.
“Just think twice, before you act on what you believe actually happened, particularly where you proceed on the basis of a termination for cause, because the standard is quite high,” he says. “Employers would be wise to consider investigating - investigation seems like a huge process, but there’s no fixed definition of what a workplace investigation is, it's what's reasonable in the circumstances.”
“The law provides a right to employers to dismiss without severance and with that right comes a responsibility,” he adds. “If you want to exercise your right as an employer to do that, then you're going to be expected to follow a process of fairness and make an effort to be respectful and give an opportunity for the employee to justify [their misconduct].”
