- In the course of employment (employer's premises)
- In the course of employment (personal activity)
- In the course of employment (reasonably incidental activity test)
- Right to sue (gross negligence)
The respondent was an employee of a temporary employment agency. He was assigned to work at the applicant's facility. He claimed a slip and fall incident occurred in a walkway leading from the parking lot to the employee entrance at the applicant's location. The issue in this application was whether the respondent was "in the course of his employment" at the time of the incident on January 18, 2018, and therefore barred from pursuing the civil suit pursuant to section 28(1) of the WSIA.
The application was allowed. The respondent's right to sue was taken away.The respondent was a temporary worker. OPM Document No. 15-02-02 addresses situations where workers do not have a fixed workplace. If a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in work-related activities. The incident occurred on the applicant's facilities and grounds over which the employer had care and control. It was a place in which the worker would have been expected to be in the course of performing his job. It related to the nature of the activity being performed at that moment - he was arriving at work. This was an activity that was incidental to employment function. In addition, the worker arrived early for his shift by 20 minutes. Where a worker intentionally arrives early for work, for reasons unrelated to their job, and is not yet performing tasks incidental to their employment, the worker is unlikely to be found to be in the course of employment. However, there are Tribunal cases that have concluded that time periods longer than 20 minutes before a usual start time are a reasonable period to arrive for work. The Vice-Chair found that it was reasonable for the Respondent to arrive 20 minutes before the start of his shift, allowing 15 minutes in order to prepare to work, including organizing his PPE gear. It was noted that a moment to relax briefly in the cafeteria on the applicant's premises was not a significant departure from his employment, nor a personal activity of the nature that would have taken him out of the course of employment. Thus, the respondent was in the course of employment when the claimed incident occurred on January 18, 2018.