Dealing with risk of injury during unpaid job trial to assess skills
Question: We are a grocery store and we encourage kitchen managers to have candidates perform a practical test as part of the interview process. For example, a cook may be asked to follow a recipe to help the company assess her knife and cooking skills. Is there anything the company should do to protect itself in the case of an injury and should the candidate be paid for the time?
Answer: This question raises a couple of issues. First, candidates for pre-employment interviews are generally not considered to be “workers” under either workers’ compensation legislation or occupational health and safety legislation. Under the Alberta Workers’ Compensation Act, a “worker” is “a person who enters into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise.”
The key to the wording in above is “enters into or works under a contract.” Candidates for employment have no such contract and as such are excluded. The wording of workers’ compensation legislation in most other provinces, is similar, if not exact.
The Ontario Occupational Health and Safety Act (OHSA) defines “worker” as “a person who performs work or supplies services for monetary compensation but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program.”
However, the employer has certain duties including ensuring:
•The equipment, materials and protective devices as prescribed are provided.
•The equipment, materials and protective devices provided by the employer are maintained in good condition.
•The measures and procedures prescribed are carried out in the workplace.
•The equipment, materials and protective devices provided by the employer are used as prescribed.
A person attending the place of prospective employment for a pre-employment interview, although not a worker under the OHSA, is still entitled to certain safety measures from the prospective employer, including appropriate equipment and protective devices. A prospective employer should ensure any person attending a pre-employment interview should ensure she has access to appropriate equipment and any applicable safety measures should be carried out by the employer.
Also, job applicants are not entitled to, or required to, be paid wages pursuant to employment standards legislation. However, when requiring a practical component to an interview, employers should take care that the individual is not replacing another regularly scheduled employee. If payment is made or, in the course of the practical interview, the applicant replaces another employee, the individual may automatically be deemed an employee under employment standards legislation. Most employment standards statutes, in part, define an employee as one who is “receiving or entitled to wages for work performed for another” or “a person an employer allows, directly or indirectly, to perform work normally performed by an employee.” A person can also be deemed an employee if she receives wages.
Finally, the common law duty of care and occupiers liability will still apply to employers who invite prospective employees to their premises for a pre-employment interview, whether there is a practical component or not.
Under common law, if a prospective employee injured herself on sharp knives because they were stored in an unsafe manner, absent any other legislation, the employer may be found to be negligent and responsible for the injury. To avoid liability the employer should take care to remove any objects or situations where it would be reasonably foreseeable the prospective employee could become injured.
Similarly, the employer would not be able to evade occupier’s liability legislation if an individual slipped and fell on the employer premises, just because the individual was a prospective employee. As such, if a prospective employee is brought into an area of the employers’ premises not usually occupied by the public for a practical interview, care should be taken to ensure the premises are safe for someone who is not familiar with the surroundings.
