Sunday, November 28, 2010

Migrant Workers and WSIB

A recent article  appeared in the Toronto Star on October 8, 2010, written by David Gouter, Assistant Professor in the School of Labour Studies at McMaster University, and Chris Ramsaroop, organizer with Justicia for Migrant Workers, that I must take offense to.  They noted in the article quite incorrectly that there is a massive power imbalance built into temporary foreign worker programs which contribute to unsafe and unfair working conditions.  This is with all due respect is a incorrect assessment based on a lack of knowledge or experience of ever working on a farm or doing an ounce of manual labour in their life.  Firstly, these workers are subject to WSIB coverage from the moment they step foot onto a plane in their home country until they return home. They are covered at church in the grocery store or when they go out to visit other workers off the farm premises.  Who in Ontario has this type of coverage as a worker?  No one! 

The work is difficult but without migrant workers you would not have food on your table, since the work seems to be too difficult for our Ontario workers.  They can be sent home  and terminated just like any other worker in this province when they are under performing or there is a lack of work.  The housing is inspected prior to the worker's arrival to ensure that it meets current standards and overcrowding is not permitted.

As an employer of these migrant workers, I invite and challenge these scholars to do their homework.  There are always a few bad apples, but the majority of migrant workers are happy with their conditions and apply to return year after year to the same employer.  To stage a "Pilgrimage to Freedom for Migrant Workers" who willingly come to Canada to work and come for the sole purpose of making money, seems a bit ridiculous, doesn't it?

WSIAT Reconsiderations- Decision 527/08

Under the Workplace Safety and Insurance Act the Appeal Tribunal's decisions are to be considered final.  However, under section 129 of the Act the Tribunal may reconsider its decision"at any time if it considers it advisable to do so".  The Tribunal has applied a high standard of review when asked to reconsider a decision.  It must be shown that there is a significant defect in the process or content of the decision, which if corrected, would lead to a change in the result of the decision. It is not enough to disagree with the decision.  The Tribunal carefully weighs the need for finality in the appeal process and the prejudice to other parties.

As noted on the Tribunal website , the power to reconsider is discretionary. The Tribunal might decide that there is a good legal reason to reconsider a decision when:

"•significant new evidence is discovered which was not available at the original hearing and which would likely have changed the outcome

•the decision overlooks an important piece of evidence (as opposed to rejecting the evidence or distinguishing it)

•the decision contains a clear error of law (for example, the decision does not apply the relevant sections of the Workplace Safety and Insurance Act)

•the decision contains a jurisdictional error (for example, the Tribunal decided an issue which it did not have the legal authority to decide). "

The power to reconsider decisions and the threshold test was considered by Vice-Chair Dee in Decision 527/09R.  The worker argued that the Tribunal decision failed to consider the worker's testimony.  This was rejected by Vice Chair Dee.  The Tribunal simply did not accept the oral evidence of the worker due to numerous inconsistencies.   However, it was found that the prior decision was based on two significant errors of fact.  The Tribunal made its decision on the basis that the worker failed to provide the WSIB with the names of co-workers whom he claimed were witnesses to his ongoing complaints between the initial injury and a recurrence.  However, Vice Chair Dee found that there was documentation in the case record that the worker did provide the with the names of witnesses on a number of occasions, as well as in the reporting of the recurrence.

In addition the Tribunal concluded that the worker was not performing modified work at the time of the recurrence.  Vice Chair Dee noted that the Tribunal did so without considering highly relevant information that might lead to a different conclusion, namely, an incident report from the employer that corroborated the worker's modified work duties. 

These two errors were noted to be significant and that a reconsideration was in order.  This decision highlights the high threshold that an applicant must meet for his or her application for reconsideration to be successful.  It is necessary to show that there is a significant defect in order to be successful on reconsiderations.  It is not merely a disagreement with the result or a rehearing of the evidence.

Saturday, November 27, 2010

WSIB New Work Reintegration Program

The Workplace Safety and Insurance Board  (WSIB) has introduced its draft policies for consultation on the new work reintegration program.  In response to criticism of the current Return to work and Labour Market reentry program  the Workplace Safety and Insurance Board has attempted to amalgamate the policies and focus on returning workers to safe, sustainable jobs and ensuring quality training, more aggressive cost containment and increased accountability.  It is no secret that the Workplace Safety and Insurance Board is trying to save costs and this is certainly evidenced in the draft policies.  The preferred and first choice will be to return to the worker to the accident employer.  This of course can and has been fraught with difficulty for many injured workers.  Employer/employee relationships are anything but perfect and while this may be an excellent option in the case of large employers with excellent modified work programs, mid size and small employers cannot be expected to hold or create employment   Disputes will continue to occur and although a WSIB staff specifically assigned to act in the new Work Reintegration role will be available, the age old modified work problems do not seem to be addressed in the new recommendations.  The issues of returning workers back to work too early, whether the work is appropriate given the worker's medication intake or pain experiences or the termination of a worker after the NEER window is closed are still ongoing issues.

The Board has attempted to address the Labour Market Reentry issues relating to credible educational institutions, job search leads, and the choice of program. These are all welcome changes.  In recent years, there has been difficulty in determining whether a goal is available.  With the case manager providing job search leads this should help workers think outside the box of what they can do with their education but also put into perspective what jobs a worker can perform with a certificate in human resources as opposed to a degree.

I truly hope that a realistic approach is adopted by the WSIB.  Rather than emphasizing the target of return to work or labour market reentry , it is necessary to remember that no one asks to be injured, coping with change is difficult and sometimes thinking outside the box is the best solution.  I would ask that in the new work reintegration program that the Board also consider thinking outside the box with a true buy out for workers  where a worker is paid upfront for the cost of a program and allowed to do what is in their view suitable .  This could in fact save the Board tens of thousands of dollars per case and in the end have a win win situation for all the stakeholders.