Another lesson about clarity in settlements: employer may file WSIB appeal after mediated settlement, despite union’s objection

An employer’s appeal challenging a departed employee’s workers’ compensation entitlements may proceed, despite being filed after the employer, union and employee reached a settlement at mediation.

The union had filed earlier grievances relating to the employee’s health and safety and her dismissal.  The union, employer and employee settled the grievances  at mediation and signed Minutes of Settlement under which the employee resigned.

After the Minutes of Settlement were signed, the employer filed an appeal challenging the worker’s entitlement to Workplace Safety and Insurance Board loss of earnings benefits relating to an earlier workplace injury.  The union claimed that that appeal breached the Minutes of Settlement.   The dispute went in front of an adjudicator with the Grievance Settlement Board.

The adjudicator noted that the Minutes of Settlement settled all issues relating to the employee’s employment and the termination of her employment.  However, the employer had not released any of its rights whatsoever.  Importantly, paragraph 9 of the Minutes of Settlement prohibited the employee from pursuing reinstatement and reemployment but went on to state, “this paragraph is without prejudice to the parties’ position with respect to any other matter under the” Workplace Safety and Insurance Act.

The adjudicator decided that although when the Minutes of Settlement were signed, the employee was receiving loss of earnings benefits under the Workplace Safety and Insurance Act, there was no guarantee in the Minutes of Settlement that she would continue to do so.  As such, the employer’s WSIB appeal did not breach the Minutes of Settlement.

Ontario Public Service Employees Union (Robbescheuten) v Ontario (Community Safety and Correctional Services), 2015 CanLII 32419 (ON GSB)

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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