The Appeals Commission for Alberta Workers’ Compensation has upheld a decision granting temporary total disability (TTD) benefits to a worker who was terminated by his employer, ruling that his conduct did not constitute “egregious conduct” under the Workers’ Compensation Act (WCA).
The employer had appealed a Dec. 13, 2023, decision by the Dispute Resolution and Decision Review Body (DRDRB), which determined that the worker, identified as W.H., was entitled to TTD benefits effective Jan. 20, 2023. The employer argued that W.H.’s employment was terminated due to egregious conduct, thereby disqualifying him from receiving wage replacement benefits under section 56(15.1) of the WCA.
W.H. sustained a workplace injury on Dec. 2, 2022, when he developed right wrist tendonitis as a result of his duties. The employer accommodated his work restrictions with modified duties until his termination on Jan. 19, 2023.
After the Workers’ Compensation Board (WCB) accepted W.H.’s claim and approved TTD benefits, the employer requested a review, contending that the worker’s conduct warranted termination with cause and thus should preclude him from receiving benefits.
Definition of egregious conduct
Under section 56 of the WCA, if an employer terminates a worker or withdraws modified work, the WCB is to pay TTD benefits unless the termination was due to egregious conduct. WCB Policy 04-05, Part II, Application 4 clarifies that “egregious conduct” must be “flagrantly bad” or “staggeringly bad,” to the extent that it is “shockingly bad to a reasonable person.”
The policy provides examples of egregious conduct, including breaches of safety standards, violence, sexual harassment or assault, deliberate destruction of property, and fraud.
Employer’s submissions
The employer’s representative argued that W.H.’s actions met the definition of egregious conduct. They cited several incidents:
Failure to adhere to schedule: W.H., as supervisor of the maintenance department, failed to follow a schedule for replacing lights in a building, leading to complaints from tenants and a work stoppage requested by the client. The representative submitted that this resulted in financial loss for the employer and potential breaches of tenant confidentiality.
Use of inappropriate language: The employer provided evidence of W.H. using profanity in discussions with his manager and in the presence of the client. A May 19, 2022, letter documented an incident where W.H. used the “F-word” towards management in front of other employees.
Safety violations: Maintenance staff under W.H.’s supervision stood on desks instead of using ladders, posing safety risks and potential property damage. The employer attributed this to W.H.’s failure to enforce safety protocols.
Aggressive behaviour: During a meeting on January 18, 2023, W.H. allegedly displayed aggressive behaviour by yelling and slamming his hands on his manager’s desk, creating a hostile work environment.
The employer argued that these actions, individually and collectively, amounted to egregious conduct that should disqualify W.H. from receiving TTD benefits.
Appeals commission’s analysis
The Appeals Commission examined whether W.H.’s conduct rose to the level of egregious conduct that would disqualify him from receiving TTD benefits.
Regarding the failure to adhere to the schedule, the Commission acknowledged that while W.H.’s inability to manage the schedule was problematic, it did not constitute egregious conduct. “It does not support that the worker maliciously had his team enter the tenant’s premises at unscheduled times,” the panel stated.
On the use of inappropriate language, the Commission found that although W.H. had used profanity, this did not meet the threshold of being “shockingly bad.” The panel noted, “While the panel acknowledges the use of ‘foul’ language in the workplace is inappropriate, the panel does not find it rises to the level of being shockingly bad.”
Concerning the safety issue of staff standing on desks, the Commission found no evidence that W.H. was aware of or condoned this practice prior to being informed. “The panel does not find maintenance staff under the worker’s supervision disregarding safety practices is tantamount to egregious conduct by the worker,” the decision stated.
The alleged aggressive behaviour during the meeting was also scrutinized. The Commission noted that while W.H. may have been frustrated and insubordinate, there was no evidence he threatened anyone. “The worker was clearly frustrated and behaved inappropriately. However, the panel does not find the worker’s conduct rose to the level of shockingly bad,” the panel concluded.
Entitlement to TTD benefits
The Commission affirmed that W.H. was not fit to return to his pre-accident duties due to his injury, citing medical evidence that supported ongoing work restrictions. Therefore, under section 56(14) of the WCA, he was entitled to TTD benefits unless his termination was due to egregious conduct.
Since the Commission found that W.H.’s actions did not meet this standard, they ruled in his favour. “The panel finds the worker’s conduct did not rise to the level of egregious conduct and his alleged failure to cooperate is not at issue since the worker’s employment was terminated,” the decision read.
For more information see Decision No.: 2024-0482, 2024 CanLII 109274 (AB WCAC).
