Applicant learns of job’s pitfalls the hard way

Worker injured while on unpaid tryout for job

This instalment of You Make the Call looks at a woman who was injured while trying out for a job.

In May 2004, the woman, who had recently immigrated to Canada, answered a job advertisement from a Chinese buffet restaurant chain. The ad was for several different jobs including cashier, waitress and kitchen staff at different locations in Southern Ontario.

The woman went to the main location in Mississauga, Ont., for an interview. Since she had no experience, the owner offered her a chance to work for no pay for a trial period at the main restaurant that day and at another location near her home the following day. If it worked out, she would be hired, though she wasn’t told what the salary would be nor how long the trial period would last.

She worked at the main location and reported to the second location the next day. The person in charge at the second location had not been informed and didn’t have any open positions but allowed her to do kitchen work and cleanup to gain experience. She started by collecting soy sauce bottles to be filled up. However, while carrying the bottles she slipped on a wet floor, dropping the bottles. The bottles broke and she cut her finger badly, damaging a tendon and a nerve. This led to an inability to fully flex the finger and numbness.

Three weeks later, the woman said she returned to the same restaurant for four more days of unpaid trial, then seven days for pay over a three-week period. She then left the restaurant after finding another job and received $500 cash for her work.

The woman applied to the Ontario Workplace Safety and Insurance Board (WSIB) for benefits compensating her for the three weeks she couldn’t work while her finger healed. However, the restaurant said it had never offered to employe her and she was only volunteering to get work experience.

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You Make the Call

Was the worker entitled to benefits for not being able to work after the injury?

OR

Was she not entitled to benefits because she was injured during an unpaid trial period?
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If you said the worker was entitled to benefits, you’re right. The woman’s claim was initially denied by the WSIB on the grounds she volunteered her services to “develop marketable work skills” and was not necessarily training for a job at the restaurant. She couldn’t be considered a learner covered for benefits since there was no guarantee of a job after her trial period ended.

However, the appeals tribunal disagreed, finding the policy referred to individuals on unpaid placements as part of formal training programs. The woman was not on a placement, the tribunal said, and she had responded to an ad for job candidates. She received training from the employer and did work that would otherwise have been done by an employee. Since she was not paid for this work, which subjected her “to the hazards of the restaurant industry for the purposes of undergoing training or probationary work,” the tribunal found the woman was in fact a learner when she injured her finger.

“These policies and the act are intended to extend coverage to individuals who are placed in workplaces by a training institution as part of a formal educational or upgrading program. They are not intended to narrow coverage or exclude individuals who are learners under the broader definition of ‘learner’ found in the act. In my view, the definition of learner is intended to provide coverage to individuals who are involved in informal learning arrangements such as the arrangement in this case,” the tribunal said.

The tribunal ruled the woman was entitled to loss of earnings benefits for the period from her injury to when she resumed her trial period three weeks later.

For more information see:

Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 1461/08, 2008 CarswellOnt 7499 (Ont. W.S.I.A.T.).

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