Investigator, adjudicator deemed worker wasn’t in construction industry, but court found construction exemption was applicable based on nature of work
A Northwest Territories employer has won its appeal to dismiss an order to pay a laid-off worker termination pay because the worker was subject to legislative exemptions for the construction industry.
Lester Bonnell worked at the Diavik Diamond Mine located 300 kilometres northeast of Yellowknife in the Northwest Territories. Bonnell was an employee of Cementation Canada, an underground mine engineering company that provides mine development and production services to mining companies. The Diavik mine owners contracted Cementation to develop and construct the underground part of the mine.
Bonnell’s job at the mine was a scoop operator, “mucking out” or removing amounts of material after it had been loosened or fragmented during blasting and other mine development activities. Much of the material he cleared out was kimberlite — a type of igneous rock that may contain diamonds.
After five-and-one-half years employed with Cementation, Bonnell was laid off without notice. He didn’t receive any termination or severance pay, so he filed a complaint under the Northwest Territories Employment Standards Act. Cementation argued that Bonnell wasn’t entitled to termination pay because a regulation under the act exempted employees in the construction industry from entitlement to termination pay.
The regulation states that entitlement to termination pay doesn’t apply to workers employed “in the construction industry,” those who work less than 180 days in a year, those who work for a fixed term of 365 days or less, or those in a job for less than 25 hours.
An employment standards officer investigated Bonnell’s complaint and spoke to someone with the territory’s Workers’ Safety and Compensation Commission (WSCC). The source informed the officer that Diavik was an operating mine when Bonnell was employed there and there was no construction project that he could have worked on. The WSCC source also said Cementation’s employees at the mine worked as miners and were not part of a construction crew.
The officer also confirmed with sources at the Northwest Territories and Nunavut Chambers of Mines and the Mine Training Society, that Cementation’s employees at Diavik were miners. As a result, the employment standards officer ruled that Bonnell wasn’t employed in the construction industry and ordered Cementation to pay Bonnell $16,153.85 in termination pay.
Cementation appealed to an adjudicator, but the adjudicator confirmed the order to pay. The adjudicator found that “the construction industry is characterized by short-term projects” and construction workers were exempted because of the irregular and intermittent nature of employment and projects in the industry — an aspect of the industry of which employees were aware. Bonnell had worked with Cementation for five-and-one-half years, which was a period of time uncharacteristic of a construction employee, said the adjudicator.
The adjudicator also found that the materials Bonnell mucked out as part of his job included kimberlite, which contained diamonds, Therefore, Bonnell was involved in the harvesting of diamonds, which was the work of a miner, said the adjudicator.
Adjudicator tied construction industry to short-term work
Cementation appealed to the Northwest Territories Supreme Court, arguing that the interpretation and application of the construction employee exemption from termination pay by the adjudicator was unreasonable, particularly in tying it to short-term work specifically — a link that wasn’t made in employment standards legislation.
The court found that the adjudicator’s reliance of the length of employment as a factor in determining whether someone was a construction employee could lead to “great uncertainty,” as there was no formal standard in place that specified what could be considered short- versus long-term employment.
The court also found that the arbitrator overlooked the distinction between development mine work like that which Bonnell did — constructing and developing the mine, including removing material and “mucking out” so the actual ore mining can take place — and production mine work — harvesting and processing ore to retrieve diamonds. Though the physical, day-to-day aspects of the two roles were similar, their objectives were different. In addition, they had different employers — Bonnell and the development miners were employed by Cementation, while the production miners worked for the mine owner, said the court.
The court noted that while the territory’s employment standards legislation didn’t define the construction industry, the act defined “work of construction” as “a building, mine…” which contemplated that “a mine can be constructed” and a company that is tasked with that job is in construction — such as Cementation was contracted to do for the Diavik mine and, once the job was done, its workers would move somewhere else, said the court.
“The employees of an employer engaged to construct or develop a mine or parts of a mine prior to mining taking place are, logically, working in the construction industry,” said the court. “Their role is not to mine the ore, but to construct an infrastructure so that others can mine the ore.”
The court determined that the arbitrator’s finding that Bonnell wasn’t in the construction industry and not exempt from the termination pay provision in employment standards legislation was erroneous and unreasonable. It allowed Cementation’s appeal and overturned the order for it to pay Bonnell termination pay.
For more information see:
• Cementation Canada Inc. v. Bonnell, 2018 CarswellNWT 37 (N.W.T. S.C.).
