Employer challenges WSIB benefits

Former employee grieves loss of injury benefits

A former employee of the Ontario Ministry of Community Safety and Correctional Services lost a challenge regarding injury benefits she had been receiving after getting hurt on the job in 2011.

The ministry had filed an appeal under the Workplace Safety and Insurance Act (WSIA), which the union said breached the memorandum of settlement that had been signed in 2013 and settled all outstanding issues concerning the grievor’s previous employment and termination.

According to the Ontario Public Service Employees Union (OPSEU), which filed the grievance, the grievor was still receiving income from a preexisting claim under the WSIA.

Because the employer did not file an appeal against that decision, the grievor assumed it was business as usual and the income would keep coming in.

Now, two years since the memorandum of settlement was signed, the grievor has found a new job and her loss of earnings from the injury were being reduced by a top up of her salary. OPSEU argued the employer’s challenge was a breach of the collective agreement.

To appeal under the WSIA would be incompatible with the principles of the settlement originally agreed upon, the union said, adding that the document was binding.

On the other hand, the ministry said it maintained the rights and entitlements under the WSIA, which the memorandum had not diminished.

The purpose of the memorandum did not intend that both parties should simply accept whatever the Workplace Safety and Insurance Board rules, but rather, because the purpose is income protection, to determine the appropriate entitlement.

As such, both parties remain able to challenge any decisions.

The issue, said arbitrator Belinda Kirkwood, was whether the memorandum provides or precludes the employer from filing an appeal regarding the grievor’s entitlement arising from a decision made by the WSIB prior to the drafting of the document.

The memorandum was a full and final settlement of all issues arising from the grievor’s employment and termination, and the parties took into account and protected her rights and entitlement under workers’ compensation.

However, both the union and employer was entitled to pursue any other issue — apart from reemployment and reinstatement — under the WSIA.

Accordingly, the ministry acted within its rights, and Kirkwood dismissed the grievance.

Reference: Ontario Public Service Employees Union and the Ministry of Community Safety and Correctional Services. Belinda A. Kirkwood — arbitrator. John Brewin for the union, Felix Lau for the employer. April 21, 2015.

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