- Class of employer
- Employer
- Issue setting
- Jurisdiction, Tribunal (class of employer)
- Procedure (interim decision)
- Worker (test) (business reality)
- Parties (accident employer)
This interim decision involved the following three issues: a) whether the worker's employer at the date of the claimed injury had been correctly identified as Employer #1; b) if the worker's employer on the date of the claimed injury was Employer #1, whether the Tribunal had jurisdiction to determine whether Employer #1 was correctly classified as a "by application" industry; and if so, whether the correct classification of Employer #1 should be added to the issue agenda for this appeal; and, c) whether additional information should be requested, as submitted by Employer #3.
The Panel found that Employer #1 was the sole employer in the worker's claim for mental stress injury. Employer #2 and Employer #3 were no longer parties to the appeal, and additional information by Employer #3 would not be required. The issue of the classification of Employer #1 was not an issue in this appeal.The Panel noted that an employment relationship is shown where there is a contract of service between a worker and potential employer, which is determined by evaluating the true nature of the business relationship between the parties, based on eight factors (business reality test). In this case, the worker was hired to work as a peer outreach worker in a pilot community outreach program established under a Memorandum of Understanding (the MOU) signed by three entities. Under the MOU, Employer #1 was solely responsible for the worker's recruitment, hiring, supervision, management, training, provision of collegial support and work site location. The Panel found that Employer #1 had consistently identified itself as the worker's sole employer and acted accordingly.It was noted that, under the Community Benefit Agreement (CBA), Employer #2 provided funding for the program but had no responsibility for hiring, training, supervision, management, or provision of a work site or materials. It was found that providing funding was not sufficient to create an employment relationship between Employer #2 and the worker. The CBA showed the intent of the parties to be that Employer #1 would be solely responsible for hiring the workers to carry out its obligations. In addition, the provision of a by-law officer was a voluntary act and did not repudiate the CBA or assume control over the worker's working conditions. The same rationale was applied to Employer #3.As a "by application" industry, Employer #1 was not required to register with the Board. The ARO decision found that this was determinative against the worker's claim. Whether Employer #1 was required to have coverage on the date of accident would have an effect on the worker's appeal on the issue of entitlement, and was an underlying or implicit issue in this appeal. The Panel found it would not be appropriate to add this issue to the issue agenda in this appeal, without a final decision of the Board.