- In the course of employment (break)
The employer sought to rescind initial entitlement for lacerations to the worker's face, right knee, right thigh, and head on April 8, 2023. The worker, a security guard, was assigned to provide security at a large retail chain store which was a client of the employer. During his shift, the worker went to a coffee shop in the same plaza to use the washroom and obtain a coffee. While leaving the coffee shop, he slipped and fell through a glass window, sustaining lacerations to his face and leg. The employer submitted that the worker took himself out of the course of employment when he left the assigned worksite.
The Vice-Chair denied the employer's appeal.The issue to be determined was whether the worker's injuries were sustained "in the course of his employment". Tribunal cases have considered situations where an employer may not provide certain facilities which requires a worker to leave the premises, and several of those decisions have found the worker to be in the course of their employment when an accident occurs (see Decision No. 1786/06). Decision No. 37/91 found that the employment relationship is not severed simply because the employer had no control over the area where the accident occurred. The Vice-Chair concluded that the worker was in the course of his employment at the time of the accident on April 8, 2023. Firstly, the requirements of "Time" as set out in OPM Document No. 15-02-02, "Accident in the Course of Employment", had been met. Second, the worker's actions in going to a nearby coffee shop to use the washroom and obtain a coffee, were actions that were reasonably incidental to the worker's employment. Significantly, the worker did not have access to the inside of the retail store he was guarding, or any other washroom facilities at the client's location during his 12-hour shift. The employer had not provided any instructions to the worker about how to access a restroom or obtain any refreshments during breaks. There was no one else scheduled by the employer to relieve the worker while he took a break to use a washroom, which suggested that the employer expected the worker to leave their guarding duties only briefly to access a washroom and then return to their post. The worker did not leave the plaza on a personal errand or take an extended break. It was considered reasonable that the worker went to the closest coffee shop in the same plaza that he was working at, to access a washroom and get a coffee. The worker left the scheduled worksite briefly, and likely intended only to use a washroom and get a coffee before returning to his guarding duties. This brief break was to address a physical need that the employer had not provided any facilities for, which was entirely reasonable in the circumstances. He was not transacting any personal business over an extended period of time, but was doing something reasonably expected of the worker over his 12-hour shift to use a washroom or get some refreshment when the employer had no such facilities.