Case In Point
WSIB Decision Determines Employer Not in Breach of Re-Employment Obligations After Terminating Employee Who Misrepresented Extent of Workplace Injuries
Date: April 7, 2025
In a recent decision, the Workplace Safety and Insurance Board (WSIB) clarified Policy 19-02-09, (Re-employment Obligations) (the Policy), which outlines conditions under which employers must re-employ workers who are unable to work due to work-related injuries or illnesses.
The decision offers valuable insight into how the WSIB determines whether an employer has fulfilled these obligations, particularly when terminating a worker for misrepresenting the extent of their workplace injuries.
Background
An employee sustained an injury at work and received loss of earnings benefits. The employee was able to return to work on modified light duties very briefly before claiming total disability.
Surveillance
During the employee’s absence, which lasted well over a year, the employer continuously engaged in the return-to-work process with the employee and the WSIB. At the same time, the WSIB conducted an investigation into the employee’s claims. Surveillance conducted by the WSIB on the employee demonstrated that the employee, on multiple occasions, performed activities beyond his stated level of function. Based on this surveillance, the WSIB issued a decision indicating the employee, who remained on leave from his employment with the employer, had misrepresented his level of disability and was medically able to perform the essential duties of their pre-injury work as of the date the surveillance commenced, thus triggering the employer’s re-employment obligations.
The decision also determined that the employee was required to repay benefits paid to him between the date the surveillance commenced and the date of the WSIB decision.
Termination
Upon receiving this decision, the employer began its own investigation of the employee’s conduct. The employer met with the employee multiple times to afford him the opportunity to explain the discrepancy observed in the WSIB investigation and to provide a copy of the WSIB file and medical documentation. The employee refused to provide any additional documentation, maintaining that the WSIB’s decision was wrong.
Based on his refusal to co-operate with the employer’s investigation into his apparent dishonest conduct, the employer terminated his employment.
More than a year after the date of termination, the employee claimed that the termination was due to his WSIB claim. He did not have any prior discipline at the time of the termination.
The Board’s Decision
The WSIB re-employment team investigated the issue and found no breach of re-employment obligations. To support this finding, the employer’s evidence had to establish, on a balance of probabilities, that the termination was unrelated to the workplace injury, or the resulting lost time or accommodation needs. The employer’s evidence included an affidavit from a labour relations officer describing the various interactions leading to the termination, an employer policy which spoke to the importance of honesty for ongoing employment, and two examples of employees who were terminated for dishonesty in the course of an employer investigation.
In reaching their decision, the WSIB clarified that it is not incumbent upon the assigned re-employment case manager to determine the merits for discipline, but rather whether the termination was related to the work-related injury or claim for benefits.
Key Takeaways
This decision offers important guidance for employers on the risks of termination of injured workers.
The ability to demonstrate accommodation efforts in the WSIB claim and to identify policies and other evidence that demonstrate the significance of the employee’s misconduct are key. The fact that information from a WSIB decision formed part of the factual context of the termination will not be enough to causally tie the termination to the WSIB claim and to support a finding of re-employment breach.
For assistance with re-employment obligations or other WSIB matters, please contact Mariana Kamenetsky or your regular Hicks Morley lawyer.
The author thanks Thomas Trudell, a 2024/2025 articling student, for his assistance with this article.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
