The information below will help you understand how we handle a prohibited action complaint from a worker and your role, as the employer, in the process.
1. Preliminary review of complaint
Before you’re notified of a prohibited action complaint, our Prohibited Action Complaints team conducts a preliminary review of the complaint. We consider whether we have jurisdiction to consider the complaint and ensure the complaint form submitted by the worker contains the basic elements that may be considered a prohibited action. This does not mean that a worker’s complaint will be successful — it means that there is enough evidence to require submissions from you, as the employer.
If the complaint passes the preliminary review, you will be notified of the complaint when we invite you and the worker to participate in voluntary and free mediation. The only issue that can be mediated is the prohibited action complaint. Mediation often helps parties resolve their dispute quickly and in a neutral setting with more control over the outcome.
We will provide you and the worker with full details of the complaint and any subsequent material collected during the initial inquiry.
Both you and the worker are free to resolve a complaint at any time on your own. Workers are also free to withdraw a complaint at any time by submitting a Prohibited Action Complaint Withdrawal (Form 11B41).
3. Written hearing
If a mediated settlement can’t be reached or if you decide not to mediate, the file will proceed to the written hearing stage.
The first stage in the written hearing is to invite you to provide us with your submissions (argument) and evidence in response to the worker’s complaint. Keep in mind, under the Workers Compensation Act, the burden of proof is on the employer to show that there has been no prohibited action.
We will disclose your submissions and evidence to the worker for their reply. We may provide the parties with additional opportunities to provide submissions if there are new facts that require a response from the other party.
Once submissions have concluded, one of our lawyers will review the submissions and evidence provided by both parties and prepare a written decision as to whether a prohibited action occurred. The lawyer may accept or dismiss the complaint.
If we dismiss the complaint, no orders will be issued and the file will be closed. If we accept the complaint, the file will proceed to a written hearing on the remedy.
5. Remedy hearing
If we find that prohibited action took place, based on a full review of all the relevant information, we will typically require further submissions from you and the worker on what remedy to award the worker. The lawyer will make a decision on the remedy award, in writing, and issue one or more formal orders to remedy the situation.
The primary objective of the remedy award is to put the worker in the same position as the worker would have been in had the prohibited action not occurred. See a summary of the remedies available to workers.
Appealing the decision
If you disagree with the decision, both you and the worker may appeal the decision directly to the Workers’ Compensation Appeal Tribunal (WCAT) as long as the appeal is filed within 90 days of the decision.
You may ask WCAT for a stay of proceedings until the appeal has been completed. Unless a stay has been granted, you must comply with the remedy order within the timeframe specified in the decision, even if the application for a stay or the appeal is outstanding.