Highlights of Noteworthy Decisions

Decision 571 21
29/04/2021
S. Ryan
  • Procedure (early resolution)
  • Worker (apprentice)
  • Worker (contract of service)
  • Worker (learner)

On August 3, 2018, the appellant suffered multiple severe burns when he slipped carrying a container of hot curry which spilled onto him. At the time of the accident, he was participating in a work trial in the employer's kitchen and had been working for about five to six hours. The ARO found the appellant had not yet been hired by the employer and was not being paid. Accordingly, he concluded that the appellant was not a worker within the meaning of the Act and there was no contract of service or employer-employee relationship.

The appellant requested that the appeal be processed through the Tribunal's Early Intervention Program (EIP).
Following Decision No. 1461/08, the Vice-Chair in the present appeal found that OPM Document Nos. 12-04-04, "Individuals on Unpaid Training Placements," and 12-04-05, "Coverage for Unpaid Trainees," which were not identified by the Board as being applicable in this appeal, were not applicable as the worker was not placed by a training agency with the employer to obtain work skills and experience. Section 69 had special provisions governing training agencies and placement hosts, which like these policies, were not applicable in the present appeal.
In the present appeal, the worker saw an advertisement on an internet website regarding an opening as a cook to start "as soon as possible" in the employer's restaurant. There was no indication in the ad that a work trial was required. Five or six hours into the work trial, the appellant was asked by another person in the kitchen to help carry a pot of hot curry to the refrigerator. In performing this function, the worker slipped on the floor and spilled the curry on him, sustaining severe burns.
It was clear from the Form 7 that the worker was on a "preliminary trial" and may have been paid retroactively if successful. This was arguably evidence of a contract of service. Alternatively, he was a learner at the time of the accident and subject to the hazards of the restaurant industry for the purposes of undergoing training or probationary work. Accordingly, he had entitlement under the Act.
Referring to Decision No. 1896/15, the Vice-Chair noted that the fact that the worker was not legally permitted to work in Ontario, and as such an undocumented worker at the time of the accident, was not a bar to entitlement under the Act.
The worker's appeal was allowed.