Arbitrator reinstates firefighter who was retrained for job with new employer due to work-related injury
Christine Davies and Erin Sobat successfully convinced an arbitrator that a firefighter who was retrained for a new career due to his work-related injury was entitled to ongoing employment status and benefits with his original employer.
Background
The grievor went on medical leave due to work-related Post-Traumatic Stress Disorder (“PTSD”) and filed a claim with the Workplace Safety and Insurance Board (“WSIB”). He was granted WSIB Loss of Earnings (“LOE”) benefits, which were paid directly by the municipality as a “Schedule 2” WSIB employer. The grievor also received “top up” to his net firefighter salary, continuation of insured benefits, and pension contributions under the terms of the collective agreement. He participated in extensive psychological treatment and it was eventually determined that he could not return to work with the municipality. As a result, the WSIB retrained him for an alternate career as a septic systems installer, which was at a lower salary compared to his firefighter role. Once the grievor started in this new career, the employer took the position that he had resigned his employment as a firefighter, or alternatively, that the employment relationship was “frustrated” because he could not return to work with the municipality. The union filed a grievance alleging that the employer had terminated the grievor’s employment without cause and seeking reinstatement of his collective agreement benefits.
The Decision
Arbitrator Nyman found that the grievor had not resigned. He accepted that where an employee accepts full-time employment with another employer, this creates a presumption that they intended to resign from their other employment. However, the presumption was rebutted in this case for several reasons. First, many firefighters in the municipality held other employment outside of their 24-hour shift schedule, which was explicitly recognized in the collective agreement. Second, the grievor had specifically indicated that he was not resigning. Third, the grievor was legally required to cooperate with the WSIB retraining process to mitigate his lost earnings due to his work-related condition. This retraining was also of benefit to the municipality because it meant the income from his new employment was subtracted from his WSIB LOE benefits. Injured workers should be encouraged to participate in such retraining where appropriate.
Arbitrator Nyman also found that the employment relationship was not frustrated. Frustration is a contract law concept that may apply where an employee has no reasonable prospect of returning to work (or regularly attending work) in the foreseeable future. It is based on the principle that the parties did not intend for the employment relationship to continue indefinitely if someone cannot work, and even where this is because of a disability, it would amount to undue hardship for the employer. However, in this case Arbitrator Nyman accepted that the WSIB top-up provision in the collective agreement demonstrated that the parties intended to maintain employment for employees on long-term WSIB leaves even if they could never return to work. The purpose of the top-up provision is to keep injured employees in the same earnings position as if they had not suffered a workplace injury, which means they generally should not be worse off than active employees. The employer could not terminate the grievor for frustration and end his collective agreement benefits because of his disability when his eligibility for those very benefits was itself based on his disability. Since there was no end date to WSIB top-up in the collective agreement, the employer was required to maintain the employment relationship on an ongoing basis.
As a result, the grievor was reinstated to employment with the municipality and is entitled to continue receiving WSIB top-up, insured benefits, and pension contributions.
Takeaways
The presumption that taking full-time employment with another employer signals an intent to resign is rebuttable and will depend on the facts and collective agreement language in each case. Furthermore, even where the medical evidence suggests that an employee on disability leave cannot return to work (or regularly attend work) for the reasonably foreseeable future, the collective agreement may demonstrate that the parties still intended to continue the employment relationship. However, this will likely require specific collective agreement benefits granted to employees on disability leaves (such as WSIB top-up), rather than benefits that are applicable to all employees without distinction.
Read the decision here: Corporation of the City of Mississauga v Mississauga Professional Firefighters Association, IAFF Local 1212, 2025 CanLII 45150 (ON LA)