WSIB: Three Issues for Employers to consider.

Oct 22, 2013

Workplace Safety and Insurance Board (WSIB) – Three Issues for Employers to consider

1. Are all workers covered by the Workplace Safety and Insurance Board (WSIB)?

Most employers are covered under Schedule 1 of the Workplace Safety Insurance Act (WSIA) and are required to register within 10 days of hiring their first worker and pay premiums to the WSIB.

Coverage is now mandatory in the construction industry.

It is very important to accurately describe your business when registering because an employer’s premium rates are based on the accident rate in your industry. For example, premiums can range from $0.21 to $18.31 per $100 payroll, depending on how prone to injury an industry is. As a consequence, an employer in the “Financial Services” classification unit will pay up to $185.22 in premiums for one worker whereas an employer in the “Form Work and Demolition” classification unit will pay up to $15,233.92 in premiums.

An employer can have one classification unit or multiple classification units. If an employer has business activities in separate classification units, the WSIB classifies the activities in the appropriate classification units as long as the employer maintains segregated payrolls.

2. When is an employer required to report a workplace accident to the WSIB?

An employer must report a work related accident/ illness to the WSIB if, among other things, it learns that a worker requires health care and/or:

  • Is absent from regular work
  • Earns less than regular pay for regular work
  • Requires modified work at less than regular pay

The WSIA requires an employer to complete a form 7 within 3 calendar days after learning of its reporting obligation as a result of a work related injury/illness. The completed form must then be received by the WSIB within 7 business days after the employer learns of its reporting obligation.

In connection with this form, the WSIB will charge a $250 penalty for late submission, providing an incomplete form, or failing to provide a copy of the form to the worker.

It is not necessary to complete this report for first-aid-only injuries handled by an in-house/worksite health care professional or trained first-aider. However, the law requires that an employer keep a record of all first aid details.

3. What happens if the worker had a pre-existing condition before a workplace accident?

Pre-existing injuries are common in back injuries.

If a prior disability caused or contributed to the compensable accident, or the worker’s recovery time is prolonged or enhanced because of a pre-existing condition, then all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the Second Injury and Enhancement Fund. Both physical and psychological disabilities are included.

If you have any workers’ compensation questions, please contact us at 1-800- 640-1728 or at [email protected]

There are many ways to attack the termination clause in an employment contract. 

I am now surprised if employee counsel does not claim that their client’s  termination clause is not legally enforceable - usually because the termination clause does not allegedly comply with the Employment Standards Act.

This blog considers a case, McKercher v Stantec Architecture Ltd., 2019 SKQB 100, where an employee successfully attacked the termination clause in his contract because he did not explicitly agree to it after being promoted. 

The Facts

In 2006, Mr. McKercher commenced employment as a staff architect. The termination clause in his employment contract stated: 

Termination other than for cause will be with notice or pay in lieu of notice, based on your length of service. If the Employer terminates your employment for other than just cause you will receive the greater of:

  1. a)   Two weeks notice or pay in lieu of notice during the first two years of employment increasing by one week for each additional completed year of employment to a maximum of three months notice or pay in lieu of notice.

      or

  1. b)   The minimum notice of termination (or pay in lieu of notice) required by applicable statutes.

Eleven years later, when Mr. McKercher was employed as a Business Centre Sector Leader, his employment was terminated. The employer paid him the three months termination pay he was owed under his employment contract.

 

Another way to attack a termination clause: What is the changed substratum doctrine?

An Ontario judge in a 2012 case, MacGregor v National Home Services, 2012 ONSC 2042 (CanLII), described this legal doctrine as follows: "The changed substratum doctrine … provides that if an employee enters into an employment contract that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee’s responsibilities and status has significantly changed."

 

The rationale for this doctrine has been described by one judge, Schmidt v AMEC Earth & Environmental Ltd., 2004 BSCS 2012 (CanLII), as follows: "In my view, it was incumbent on the defendants to advise Mr. Schmidt that they intended to continue to rely upon the termination provision set out in the Agreement when substantial changes in his employment occurred. This would have allowed him to consider the matter and to negotiate for other terms. If the defendants wished to continue to rely on the termination provisions there ought to have been a ratification of the provisions as the nature of Mr. Schmidt’s employment changed."

 

Decision

The judge hearing this case relied on the following factors when deciding not to enforce the termination clause in the employment contract: ”...there is no evidence that (the employer) made it clear to the (employee) that the notice of termination provisions were intended to apply to the positions to which he was promoted. The employment agreement contains no express wording to this effect, nor does it contain any wording to support the inference of such an intent. Further, and in keeping with the analysis in Schmidt, the Court received no evidence that, as it promoted the plaintiff, SAL reasserted its understanding and expectation that the notice of termination limit would remain in effect.”

 

Lesson to be learned:

An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted. This expression of this intent should be in writing and should be clear and unambiguous. I recommend that an organization’s employment be reviewed by an employment lawyer every year or two. If your employment contract does not address this issue then think about doing so the next time it is reviewed.

 

For 30 years, Doug MacLeod of   the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

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