Sometimes, yes. Being on WSIB does not make you impossible to dismiss. But the Act puts real limits on an employer who lets an injured worker go, and two of them run on short clocks.
A workplace injury followed by a termination letter is one of the most common ways people end up looking for a lawyer. The answer depends on three things: whether your employer was making a claim harder to pursue, whether the Act's re-employment obligation applies to you, and what your employment contract and the common law say about notice.
Your employer cannot punish you for claiming
Section 22.1 of the Workplace Safety and Insurance Act prohibits an employer from taking any action intended to discourage a worker from filing a claim, or to pressure a worker into withdrawing one. The Act names dismissal and threats of dismissal, discipline, suspension, penalties, and intimidation of any kind. An employer that does this faces an administrative penalty from the WSIB, separate from any prosecution.
Section 16 adds that any agreement to give up WSIB benefits is void. A "package" offered on the condition that you do not pursue a claim does not take away your entitlement.
The re-employment obligation, and who it covers
Under section 41, an employer must offer to re-employ a worker who could not work because of the injury, but only where two conditions are met:
- the employer regularly employs 20 or more workers, and
- you had been employed by that employer continuously for at least one year on the date of the injury.
If either condition fails, section 41 does not apply to you, and you rely on the other protections in this article. Construction employers are subject to separate rules.
Where the obligation does apply, the employer must offer your old job, or comparable work at comparable earnings, once you can do the essential duties. If you can only do suitable work, it must give you the first opportunity at suitable work that becomes available. It must also accommodate the work or workplace to the point of undue hardship. The obligation runs until the earliest of the second anniversary of the injury, one year after you are medically able to do your pre-injury job, or your 65th birthday.
Let go within six months of coming back
This is the rule most often missed. If your employer re-employs you and then terminates you within six months, section 41(10) presumes the employer did not meet its obligation. The employer can rebut that by showing the termination had nothing to do with the injury, but the burden is on the employer.
The catch is in section 41(12). The WSIB is not required to consider your request to review the employer's compliance if you make it more than three months after the termination. The Board can look at the issue on its own initiative, but you should not rely on that. If you were let go within six months of returning, the request should go in well inside the three months.
Where the Board finds the employer did not comply, section 41(13) allows it to levy a penalty of up to your net average earnings for the year before the injury, and to pay you for up to a year as if you were receiving loss of earnings benefits.
Your WSIB benefits do not end automatically
Being dismissed does not, by itself, cut off your entitlement. Loss of earnings benefits turn on whether you still have a loss of earnings caused by the injury. The reason for the termination can matter to that question, which is one reason the employer's account of why you were let go should not go unanswered.
The employment law claim is separate
A WSIB claim does not replace your rights as an employee. If you were dismissed without cause, you are still owed termination notice or pay in lieu under the Employment Standards Act, and often considerably more under your contract or the common law, depending on whether the termination clause in your contract is enforceable. A dismissal that follows closely on an injury also deserves a hard look at the employer's stated reason. These are civil claims, decided on different rules and different timelines from the WSIB, and they can be pursued together. More on that on the employment law page.
What to do now
- Keep the termination letter and anything said about the reason, in writing if possible.
- Write down the date you were re-employed and the date you were let go. The six-month and three-month clocks run from those dates.
- Do not sign a release before you understand what it gives up.
- Check every WSIB decision letter you receive after the termination for its objection deadline. Return to work decisions carry only 30 days.
For how WSIB objections work generally, see WSIB claim denied? How objections and appeals work, or the WSIB claims and appeals page.
