Cleaner 'stepped out of course of employment' for personal activity, says court of appeal
The Nova Scotia Court of Appeal has upheld a tribunal’s finding that a worker who slipped and fell in a washroom at work while performing a religious cleansing is not entitled to workers’ compensation benefits for his injury.
The tribunal found, and the court agreed, that the worker essentially stepped out of the course of employment when he went to the washroom to perform the cleansing ritual, says Alex Warshick, a labour and employment lawyer at McInnes Cooper in Halifax.
“Essentially, they looked at the purpose of what the worker was doing - it wasn't for any work-related purposes and there weren't any connections to work functions, so the worker was found to have stepped out of the course of employment,” says Warshick.
Employer contested claim
The worker was employed as a cleaner for GDI Services, a Montreal-based commercial cleaning company, at a facility in Dartmouth, NS.
On Aug. 17, 2020, the worker clocked in for his shift and, before he started working, he went to a small private washroom to perform a religious cleansing ritual. The ritual, called wudu, involves pouring water over parts of the body including the feet.
After the worker completed the ritual in the washroom, he slipped while putting his socks back on. He fell onto the floor and injured his back.
A worker can’t file an injury lawsuit after making a workers’ compensation claim, an Ontario court ruled.
The worker filed a workers’ compensation claim, but GDI submitted an accident report to the Nova Scotia Workers’ Compensation Board (WCB) along with a letter contesting the claim.
A month later, a WCB case worker determined that the worker’s personal injury did not arise out of or in the course of employment, as the worker was performing a religious ceremony that was not connected to his work. With no causal connection between the worker’s job and the injury, his claim was rejected.
The worker appealed, but a WCB hearing officer agreed with the case worker. The officer concluded that the worker “took himself out of his employment to wash his feet for personal reasons,” so the injury was not compensable.
The worker appealed again, this time to the Workers’ Compensation Appeals Tribunal.
The tribunal found that the worker’s activity wasn’t a job requirement and it wasn’t being performed for the benefit of or at the instruction of the employer. GDI had told the worker to perform the ritual as quickly as possible, but this wasn’t the same as instructing the worker to do it, the tribunal said.
Seven in 10 Ontario workers who were injured on the job still experience pain 18 months later, according to a report.
‘Imported personal hazard’
The tribunal also found that the ritual could be considered “an imported personal hazard” that presented a risk specifically to the worker that was not incidental to his employment and “significantly deviated” from his regular employment activities, said the tribunal.
The tribunal noted that an injury that occurs in incidental activities such as coffee breaks could be considered in the course of employment, but it would only be considered to have arisen out of employment if there was a causal connection that was “more than trivial.” In this case, the worker’s cleansing ritual was completely separate from his employment activities, said the tribunal.
The worker took his case to the Nova Scotia Court of Appeal, arguing that the tribunal erred in finding that his activity was not incidental to employment or arose out of and was in the course of employment.
The court referred to the Nova Scotia Workers’ Compensation Act, which states that “where the accident arose out of employment, unless the contrary is shown, it shall be presumed that it occurred in the course of employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed that it arose out of the employment.”
The WCB also has a policy to assess entitlement to workers’ compensation under the act. The policy describes “arising out of” employment as meaning that an accident and injury “must be caused by some risk related to the employment” either directly or indirectly. This is concerned with the origin of the cause of the injury, said the court.
The court also noted that “in the course of employment” was concerned with the time, place, and circumstances of the accident, and the WCB’s policy stipulates that a compensable injury must occur at a time consistent with when the worker is typically working, in a place where the worker performs work, and while performing an activity directly or incidentally related to the employment.
In some jurisdictions, employers are given the opportunity when a workers compensation claim is filed to express any concerns or objections about the claim.
Risk created by employment
The court found that there was a significant amount of evidence for the tribunal to find that the worker’s injury did not arise out of his employment and it was reasonable for it to reach its conclusion. In addition, the tribunal correctly followed the law in that there must be a link between the worker’s injury and risk created by the employment.
“There wasn't that clear causal link between the risks inherent in the employment and the accident leading to the injury,” says Warshick. “Any member of the general public going to the washroom at this particular facility and performing a ritual like this, or just simply washing up would have had the same risk of injury - there's nothing about the job itself that contributed to the risk of this particular injury.”
The court also agreed with the tribunal’s assessment of the factors to consider in determining if an injury is in the course of or is incidental to employment, which was a finding of fact based on the tribunal’s review of the evidence.
The court found no overriding or palpable errors in the tribunal’s decision, noting that its role was not to “reweigh [the tribunal’s] findings of fact.” The worker’s appeal was dismissed.
A worker injured on a public road while driving a company vehicle on the way to a remote worksite was entitled to workers’ compensation, the New Brunswick Court of Appeal ruled.
Circumstances can easily change
Warshick notes that there have been other tribunal cases in Nova Scotia involving incidents in workplace washrooms where there was no connection to the course of employment so the injury was not compensable. However, he adds that the circumstances can easily change that can bring a worker back into the course of employment.
“Anybody driving to and from the dry cleaners [during a break], for example, any member of the public on the street at that particular time would have the same level of risk as that worker - but then you add the wrinkle that they're going to pick up their uniform from the dry cleaners, which they need to wear at their employer’s place of business and they've gone with permission from their employer to get it at the start of their shift,” he says. “That all of a sudden moves an activity that might not be in the course of employment into the course of employment because it's at the behest of the employer, or the employer has some element of control.”
Another issue that could have changed the situation is that there was a dispute on whether GDI’s allowance of the worker to perform his ritual was an accommodation, says Warshick.
“The tribunal never made a finding there was an accommodation in place from the employer - there were some conversations that the employee had with the employer, but nothing amounting to an accommodation - which might have changed the extent of control and direction that the employer had given for this activity in their workplace, and which might have brought it into the course of employment.”
One area to watch coming out of a decision like this is the notion of a worker stepping out of the course of employment during the workday, says Warshick.
“So much of what's personal and what's work-related becomes really difficult to separate in workplaces that are increasingly flexible,” he says. “Whether it's childcare responsibilities, religious activities as in this case, or other personal things like running an errand - where the personal and the work-related stop and start might influence future decisions in this area, especially with flexible work arrangements and the ability to take some time to do something personal and come back to the job.”