You make the call
This edition of You Make the Call features an employee who wanted more on-call pay.
Kenneth MacAulay was a community coroner for the British Columbia Coroner’s Service. His job was to gather information from certain sites where someone died and compile reports from that information. At that point, he would turn over responsibility for the investigation to a full-time coroner.
MacAulay’s position was on a casual basis and he was based out of his home. The B.C. Coroner’s Service equipped him with a cellphone, laptop computer, printer and office supplies to use at home. The Coroner’s Service assigned him cases through text messages on his cellphone and he had the opportunity to accept or reject the assignments. If he didn’t respond to a text within 15 minutes, the Coroner’s Service would call him. If he still couldn’t be reached, the Coroner’s Service would either try again or assign someone else to the case.
Upon acceptance of a case, the Coroner’s Service paid MacAulay from the time of his response until his duties were completed, with a two-hour minimum.
In February 2019, MacAulay filed a complaint with B.C.’s Director of Employment Standards claiming the Coroner’s Service had failed to pay him wages. He argued that he was on call for the entire day, every day that he was on duty and should be paid for that time. He said that, unless he booked a day off, he was expected to be available as needed 24 hours per day, seven days per week. During the time he was on call, the Coroner’s Service controlled him and he had significant restrictions on his activities — he couldn’t drink alcohol because the Coroner’s Service has a zero-tolerance policy, for example — and mobility — there were many “dead zones” for cellphone reception in his region, so he was unable to travel to those areas while on call for activities such as fishing.
Because of the restrictions on his mobility and activities and the control the Coroner’s Service had over him, MacAulay maintained that he was entitled to wages for time spent on call. He also pointed to the Employment Standards Branch’s Interpretation Guideline Manual for on-call employees, which states “an employee can be ‘on-call’ virtually anywhere and need not be at a specific location designated by the employer. When the employee responds to a page or a cellular call, the employee has in effect, ‘reported’ to work and is entitled to minimum daily pay.” MacAulay argued that any day he didn’t book off with the Coroner's Service was an automatic report to work.
You Make the Call
Should MacAulay be paid for the time he was on call?
OR
Should MacAulay be paid only for the time he was assigned to a case?
If you said MacAulay should be paid only for the time he was assigned to a case and not for the rest of the time he was on call, you’re correct. A delegate from the B.C. Director of Employment Standards found that the equipment provided to MacAulay by the Coroner’s Service allowed him to leave his home while he was on call and MacAulay could do much of his daily activity in the community without restrictions. Although MacAulay was right in that he couldn’t go to more remote areas that didn’t have cellphone service or consume alcohol while he was on call, these restrictions weren’t “sufficiently stringent” to bring his on-call time at home within the definition of “work” under the B.C. Employment Standards Act — which included the statement “an employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employee’s residence.”
MacAulay appealed to the province’s Employment Standards Tribunal. However, the tribunal found the statutory definition of work is clear in excluding employees who are on call at their own residence, commenting that “the fact that the employer provided [MacAulay] with certain devices to assist him with being on call does not have the effect of converting his residence into an office.”
The tribunal noted that earlier decisions had also confirmed that “on-call employees who are not required to remain in a location designated by their employer are not ‘working’ and thus their ‘on call’ time is not compensable ‘work’ as defined in section 1 of the ESA.”
For more information, see:
- Kenneth A. MacAulay (Re), 2020 BCEST 31 (B.C. Emp. Stdrds. Trib.).
