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Stretching workplace boundaries

Determining when and where an employee is ‘in the course of employment’ can be a grey area for workers’ compensation

By Jeffrey R. Smith

When a worker gets injured on the job and can’t come back to work right away  — or even at all — because of that injury, the workers’ compensation system is designed to help that worker make up for the income lost because of her inability to work. The key factor here is the “on the job” part — often referred to as “in the course of employment” in the legislation of various Canadian jurisdictions — for the worker to be eligible for this type of compensation. But sometimes it’s not always clear what qualifies as in the course of employment.

I’ve discussed in an earlier blog the debate over certain activities that could or could not be considered in the course of employment and warranting workers’ compensation. But what about location? What is considered part of the workplace? A parking lot where employees park, whether part of or adjacent to the employer’s property? A road leading to the workplace? Anywhere employees might find themselves because the job requires it?

In 2007, an Ontario construction worker filed a workers’ compensation claim for injuries he sustained in a fight in the parking lot. The lot was a dedicated lot only for workers on the adjacent condominium project and was fenced off with restricted access. Safety gear was required to be worn in the lot, just as it was on the construction site. The employer also encouraged workers to use the lot.

One day, a truck hit the worker’s vehicle in the lot and caused minor damage. The worker found the driver and a physical altercation ensued, resulting in serious injuries for the worker. The other individual was charged with assault and the worker was unable to work after the fight. However, the Ontario Workplace Safety and Insurance Appeals Tribunal denied his claim for compensation, ruling his vehicle was not part of his job and although the parking lot was part of the workplace, the worker removed himself from the course of his employment when he approached the truck driver. The worker’s actions were “entirely personal in nature” and unrelated to his job, said the tribunal.

The decision makes sense in that the worker wasn’t doing his job at the time of the fight and it was a personal matter. But he and his vehicle were also there because of his job and the parking lot was part of the workplace. However, though he approached the truck driver, he was the one who was attacked. Would the situation be different if the driver approached him when he was going to his vehicle? What if the altercation happened on the worksite during the shift? In another recent case in New Brunswick, an employee won his claim when he was in a car accident on a public road on the way to work. How much weight does the location of the injury as opposed to the activity in determining what is and isn’t in the course of employment?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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