DON'T LIE TO WSIB
A man we will call Ted started working a company in 1997 as a labourer. A year later, having proved himself as a valuable employee, he was promoted to the position of welder. In October of 1999, while helping a supervisor lift a heavy piece of metal, he strained his back.. His supervisor told him to rest in the lunch room and see if the pain in his lower back subsided.
When the supervisor went to see him in the lunch room a little while later, Ted was still in pain. The supervisor suggested that Ted take the rest of the day off and agreed to pay him for the day. The supervisor then asked Ted not to claim compensation from the Workplace Safety and Insurance Board because it would look bad on the company record and potentially increase the premiums the company paid to the Workplace Safety and Insurance Board. Ted responded that he had no intention of making a WSIB claim as he expected to be at work the next day. Unfortunately for Ted, he was still in pain the next day and phoned his supervisor. He explained that he could not come to work and asked to be paid for a couple of more days. The supervisor put him through to the company president who agreed to pay him for a few days. Five days later, Ted was still off with an injured back and was sent a notice that he was being laid off, Atemporarily@ as a result of a work shortage.
Ted filed a claim for WSIB compensation. When the Board contacted the employer, the President said that Ted could not have injured himself at work since he had already been laid off a few days before the alleged injury. Luckily for Ted, the Board further investigated the matter and accepted Ted=s claim.
Ted sued for wrongful dismissal and claimed that the reasonable notice to which he might otherwise be entitled should be increased as a result of the employer=s bad faith treatment of him in terminating his employment as a result of his injury and lying to the Workplace Safety and Insurance Board in order to keep Ted from collecting benefits.
The judge at trial believed almost nothing that Ted=s employers said under oath. The employer claimed to have legitimately laid Ted off along with other workers as a result of an economic slow down. Oddly, they could not remember the name of any other employees although they knew perfectly well that they would have to prove this allegation at trial.
The president gave about 5 different dates under oath as to which the decision had been made to lay Ted off.
The trial judge found that just because the employer had called Ted=s termination a Alay off@ did not mean that it was not a termination. Courts have held for some time that although the Employment Standards Act
has provisions allowing employers to lay off employees temporarily, an employer must prove that the employee had agreed that they could be laid off without notice or that there was a history of occasional layoffs that the employee had accepted. The employer in this case had evidence of neither.
The judge found that in usual circumstances, Ted would have been entitled to 2 months pay in lieu of notice after his 2 2 years of service. Given the bad faith treatment of Ted which was accepted by the judge, however, Ted was awarded 3 months' pay in lieu of reasonable notice.
Judges have many skills and responsibilities. One of the primary skills they develop in the course of their jobs is being able to detect liars. That be no means indicates that they always make the right decision about who is and is not lying. It does mean, however, that you're going to have to be a very good liar to fool most judges.
It would appear from reading this decision that the employer in this case had an over-inflated sense of his ability as a liar.
The important lesson found in Ted's sad tale for employers is that one should get good advice early on and cut your losses when a termination occurs. This employer's decision to mislead the Workplace Safety and Insurance Board with respect to whether or not Ted was working on the date of the accident resulted in the employer having to pay an extra month's wages to Ted.
As published in the Hamilton Spectator, June 3, 2002