Canadian Employment Law Today

Canadian EmploymEnt law today published by Canadian hr reporter, a thomson reuters business 2014 7 for the year before the work-related acci- dent and injury. This calculation only in- cluded actual compensation from work and not EI benefits received. For perma- nent workers, "gross annual remunera- tion" was estimated based on the salary the worker was earning at the time of the accident. Since the amount of EI Mercer received in Newfoundland and Labrador wasn't included in the calculation of his ben- efits, the amount he received was about $265 less every week than what he would have received with the EI included. The Northwest Territories differs than most other Canadian jurisdictions in that workers who want to contest the amount of workers' compensation benefits can pursue other avenues outside the work- ers' compensation appeals system. As a result, Mercer filed a complaint with the territorial human rights commission, claiming the WCB discriminated against him on the basis of his social condition — a prohibited ground under the North- west Territories Human Rights Act — by differentiating between seasonal workers and permanent workers when determin- ing the benefits they receive. Mercer also filed an appeal with the WCB appeals commission, which grant- ed him benefits based on his total remu- neration including EI benefits. However, this was specified as a "one-time only" basis, so the human rights complaint was continued so the WCB could re- ceive guidance on how to handle sea- sonal workers' benefits calculations in the future. The adjudicator found Mercer was part of a group "composed of seasonal workers who live in areas of high un- employment; are required to work away from home, and often outside their home province; they earn less than the nation- al and provincial average salaries; and they have lower education levels with fewer job opportunities." The WCB's policy of excluding EI ben- efits as part of the gross annual remuner- ation of seasonal workers was discrimi- nation on the ground of social condition, said the adjudicator. The WCB appealed the decision to the Northwest Territories Supreme Court. The court upheld the decision, finding eligibility criteria for government benefit programs needed to have lines drawn, but those lines could not discriminate against a worker on the basis of a prohibited ground. The WCB appealed again, this time to the Northwest Territories Court of Ap- peal, arguing the workers' compensation scheme was based on work and funded by workers' contributions. EI benefits didn't contribute to workers' compensa- tion funds and therefore shouldn't count towards benefits, said the WCB. The appeal court found EI benefits are designed to replace work income and workers must meet minimums for paid employment to qualify; therefore, EI benefits "are thus very much employ- ment-related earnings," said the Court of Appeal. The appeal court pointed out that a permanent worker who had received EI benefits in the year before an injury would not be penalized in the calcula- tion for gross annual remuneration be- cause only her salary would be used. "This starkly illustrates the discrimi- natory impact of the WCB policy, which bases a seasonal worker's entitlement on his or her income during the year before the injury but excludes any EI benefits received during that time period," said the appeal court. The Court of Appeal upheld the low- er court's decision supporting Mercer's claim, along with the human rights ad- judicator's determination that the WCB's policy of excluding EI benefits in the annual remuneration calculation for seasonal workers was prima facie dis- criminatory based on social condition. See Northwest Territories and Nunavut (Workers' Compensation Board) v. Mer- cer, 2014 CarswellNWT 17 (N.W.T. C.A.). Continued from page 1 excluding ei as part of earnings was discriminatory Continued from page 3 Caretaker's denials didn't hold up to scrutiny MoRE caSES CompiLEd by JEffrEy r. SmiTh the worker filed a human rights complaint, claiming the differentiation in remuneration calculation between seasonal and permanent workers was discrimination based on social status. As for the incident with the students, the caretaker's denial that he didn't mention his older daughter didn't make sense, as otherwise how would the vol- unteer know about her — even if the exact age she reported was inaccurate? Following that, it was likely that men- tioning both daughters would prompt a discussion of why they were so far apart in age, which would make the caretak- er's remarks about teenage pregnancy fit in the context of the conversation, said the arbitrator. Finally, the arbitrator found the care- taker's claims regarding the supervisor's complaint about his work were contra- dictory. He said he was frustrated that he couldn't get all his assigned work done without missing his breaks, but he left early and claimed the supervisor only mentioned the chalk ledges as not being finished. If that was the case, the caretaker was able to get most of the work done in plenty of time and it didn't make sense for the discussion to get heated, said the arbitrator. The arbitrator found the caretaker made the harassing comments to the secretary and the inappropriate com- ments to the students, and also failed to complete his work at the first school on the split shift. His denials also showed a failure to acknowledge his misconduct or offer an apology. As a result, the five- day suspension was appropriate, said the arbitrator. For more information see: • Niagara District School Board and CUPE, Local 4156 (Kennedy), Re, 2014 Carswel- lOnt 3097 (Ont. Arb.).

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