WCAT had made their final decision on the WorksafeBC PAC. However, I now have to jump even more hoops to prove that I deserve compensation. How is this legal? BG: worked as apprentice, completed 1st level school, returned, had been told more duties coming my way, they didn’t, kept getting bullied by Jman, Jman came at me one day so I made a safety report, next day, dismissed due to ‘lack of work’, made PAC to WSBC, they dismissed my case, got it reconsidered by WCAT, they stated, taint in employers actions to dismiss me. Now, I have to do this as per the letter. Please and thank you to any advice.
Procedure for providing submissions and evidence on remedy
1. You must provide your submission and evidence on remedy within 21 days from the date of this letter.
2. Your submission and evidence will be sent to the employer, and the employer will be given an opportunity to provide its submission and evidence in response within a set deadline.
3. The employer’s submission and evidence on remedy will be sent to you, and you will then be given an opportunity to provide a final reply.
Background information on remedies
When WorkSafeBC has determined that prohibited action has occurred, (it was, as stated in the WCAT letter that they have a copy) section 50(2) of the Act states, in part, that WorkSafeBC may make an order requiring an employer do one or more of the following:
(a) cease the prohibited action;
(a) reinstate the worker to that worker’s former employment under the same terms and conditions under which that worker was formerly employed;
(b) pay, by a specified date, the wages required to be paid by the OHS provisions or the regulations;
(c) remove any reprimand or other references to the matter in the employer’s records on the worker;
(d) pay the worker’s reasonable out-of-pocket expenses incurred because of the prohibited action;
(e) do any other thing that WorkSafeBC considers necessary to secure compliance with the OHS provisions and the regulations.
Policy Item P2-50-2 of WorkSafeBC’s Prevention Manual explains that WorkSafeBC’s objective in exercising its remedial powers in the prohibited action context is to, as far as possible, put the worker in the same place they would haven in had the prohibited action not occurred.
This involves determining not only the worker’s actual loss but determining whether there were any measures the worker could have reasonably taken to reduce or eliminate (mitigate) that loss. (Seriously? It makes it sound like they have prejudice already against the worker. In my case, I couldn’t. I had registered for school in January, starts in May, wrongfully dismissed in beginning of March and I wanted to continue with my apprenticeship technical training)
Please note that although it is the employer’s legal burden to prove the worker failed to mitigate their loss, by necessity, this requires scrutiny of the worker’s efforts to do so. (Im confused by this because it makes it sound like I have to feel sorry for my ex employer.)
Other factors considered in determining the worker’s loss include:
• Any collateral benefits the worker has received from the employer (note that collateral benefits from a source other than the employer, such as employment insurance and private insurance benefits, are not considered); and
• Other circumstances affecting the worker’s loss that arose independently of the worker’s conduct after the prohibited action or failure to pay wages occurred, for example, the closure of the place of employment.
Topics to be addressed by the worker
Please provide your submissions and evidence on the following (as applicable):
1. The remedy you are requesting
• State the remedy or remedies you are requesting; and
• Briefly explain why you believe your requested remedy would put you in the same position as you would have been, had the employer not taken prohibited action (i.e., your dismissal).
2. Lost wages, vacation or other benefits
If you are requesting any remedy relating to recovery of lost wages, vacation, or other benefits, which resulted from the employer’s prohibited action (i.e., your dismissal), it is important that we have information about your usual wages or other benefits at the time of the employer’s prohibited action for any relevant calculations we might need to make. Therefore, please:
• State the amount of lost wages, vacation pay and/or other benefits you are requesting;
• State your average gross (before deductions) weekly wages or salary at the time you were dismissed;
• State the number of hours per week you usually worked for the employer; and Provide copies of paystubs, cheques or any other supporting documents.
3. Your dismissal by the employer
• State how long you expected to work for the employer had you not been dismissed. Briefly explain your reasons for your position;
• Provide a copy of the Record of Employment (ROE) issued to you by the employer;
• State the amount of severance or termination payments, accumulated vacation pay or other payments (if any) you received from the employer when you were dismissed; and Provide any supporting documents.
4. Your efforts to find new employment:
• Describe your efforts to find new employment, including the dates you applied for jobs, where you applied, and contact information for the jobs you applied;
• Provide any documents explaining and supporting your job search efforts, such as copies of the advertisements you applied to, cover letters or emails you sent, and your resume; and
• If you failed to find new employment or delayed looking for new employment, briefly explain why
this was so, and provide supporting documents.
5. If you found new employment (if multiple jobs, please set out each one separately)
If you are seeking a remedy for lost wages, vacation or other benefits resulting from your dismissal, it is important that we have information about the income and benefits you earned from other employment, including self-employment, after your dismissal, for any relevant calculations we might need to make. Therefore, please:
• Advise if you are currently employed;
• State the start and end date for any new employment you obtained;
• State the gross (before deductions) wages or salary you earned from each new employment;
• State the number of hours, days and/or weeks worked at each new employment; and
• Provide any supporting documents such as paystubs, employment letters, or T4 slips, related to any and all of your new employment.
6. Out-of-pocket expenses:
• If you incurred out-pocket expenses relating to the employer’s prohibited action (i.e., your dismissal), provide a list of those expenses and briefly explain how each expense relates to the prohibited action; and
• Provide receipts and any other supporting documents for each listed expense.
7. Other:
• Provide other evidence and submissions relating to any remedy that you are requesting.
Once the exchange of submissions is complete, I will issue a written decision about remedy.