Wednesday, 25 February 2015

Trying to Stop Shoplifter While on a Break Not "In the Course of Employment": WSIAT

In a recent decision, the Workplace Safety and Insurance Appeals Tribunal ("WSIAT" or the "Tribunal") has ruled that an employee of a supermarket can sue her employer and a third-party for injuries she incurred when she was run over in the parking lot by a suspected shoplifter.  The employee was on a break at the time that she became involved in trying to apprehend the shoplifter. In its decision, WSIAT determined that neither the employee nor the personal defendant (the grocery manager) were "in the course of employment" when the employee was injured, and that she was not therefore precluded from pursuing a civil claim.

In Guizzo v. Metro Ontario Inc., the Tribunal initially focused on whether it could be said that the grocery manager (Mr. Hughes, a defendant in the action by cross-claim) was in the course of employment, taking into consideration the factors of time, place and activity. At the point when Mr. Hughes pursued the suspected shoplifter, he had completed his shift.  The pursuit led to a shared parking lot that was not part of the employer's premises, and the employer had a violence prevention policy that prohibited employees from trying to apprehend thieves. Pursuing shoplifters was not part of the defendant's job, in any event.

Likewise, the Tribunal found that Ms. Guizzo was on a break, and the employer had an expectation that she would be available to be called back to work if needed.  She had varied from her usual routine of spending her breaks near the exit door of the store.  The employer did not expect the employee (a cashier) to attempt to stop a suspected shoplifter, and such activity was expressly prohibited by the violence prevention policy.  Ms. Guizzo's injuries were incurred in the parking lot, which was not part of the employer's premises.

Under the WSIB's policies (OPM Document No. 15-02-02, "Accident in the Course of Employment"), an accident is deemed to be work-related where "the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment" (emphasis added).  However, OPM Document No. 15-03-04 specifies that "[w]orkers are not in the course of employment in public parking areas not under the employer’s control".  Moreover, where an employee is doing something that is outside their duties, or that he or she was not reasonably expected to do, this will generally take an employee outside the course of employment (OPM Document No. 15-03-08).  In addition to Board policy, the Tribunal also considered a list of factors that had been determined to be relevant in previous decisions:
1. Whether the employer derived a benefit from the activity performed by the worker.
2. Whether the worker was paid by the employer for the activity.
3. Whether the accident occurred while the worker was using equipment or materials supplied by the employer.
4. Whether the risk to which the employee was exposed was the same as the risk to which he would normally be exposed in the course of his employment.
5. Whether the activity was a result of instructions received by the employer.
6. Whether the accident occurred during the worker's normal working hours or overtime hours.
7. Whether the activity was reasonably incidental to the worker's normal employment duties.
In reviewing these factors, the Tribunal concluded that neither employee was doing something from which the employer derived a benefit, and that the time and place of the accident suggested that neither was performing their duties or an activity "reasonably incidental" to those duties when the accident occurred.

Despite the obvious connection with the workplace, the Tribunal concluded that neither Ms. Guizzo nor Mr. Hughes were "in the course of employment" when Ms. Guizzo was injured.  Because of this finding, the WSIAT concluded that section 28 of the Workplace Safety and Insurance Act did not remove Ms. Guizzo's right to sue for her injuries.

For employers, the moral of the story is that despite WSIB coverage, there will still be instances in which an employee's injuries may not be covered by the statutory regime.  Where employees are engaged in activities that take them outside the normal course of their duties (even where the employer has a policy prohibiting such behaviour), an employee may still retain a right to bring a civil action naming the employer.  It must be remembered, however, that this decision does not determine fault with respect to the employee's injuries.  It remains open to the defendants to argue contributory negligence on the part of the plaintiff, relying on the employer's violence prevention policy.

Do you have questions about what it means to be "in the course of employment"?  Need guidance on a WSIB claim or civil action by an employee?  Contact Lance Ceaser for expert advice.



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