Students on work placements not covered by ESA
Question: Do employment standards apply to a student on an unpaid internship or volunteers?
Answer: In Ontario, the Employment Standards Act, 2000, does not apply to a secondary school student who performs work under an authorized work experience program. It also does not apply to someone working under a program approved by a college of applied arts and technology or a university.
Another interesting provision with regard to the status of trainees states a trainee can be considered an employee. However, it goes on to state a trainee will not be considered an employee (and, therefore, not subject to the act) if the following conditions are met:
• The training is similar to that which is given in a vocational school.
• The training is for the benefit of the individual.
• The person providing the training derives little, if any, benefit from the activity of the individual while she is being trained.
• The individual does not displace employees of the person providing the training.
• The individual is not accorded a right to become an employee of the person providing the training.
• The individual is advised she will receive no remuneration for the time she spends in training.
In general, a contract of employment does not exist where there is no consideration in the form of remuneration for the services provided by the worker. While some would argue there is at least some type of consideration in the form of learning opportunities, enhanced future employment prospects, networking opportunities, increased self-fulfillment and personal satisfaction, volunteers do not have contracts of employment and are, therefore, not employees under the law.
Of course, some volunteers are paid an honorarium, yet even those individuals are generally not considered to have a contract of employment. This is usually the case as long as the honorarium is truly a reimbursement for costs incurred, such as travel expenses and meals, and not remuneration for services rendered.
The 1995 case of Evard v. Alma Mater Society of the University of B.C. provides an interesting example. The plaintiff was an editor at a student newspaper who was paid an honorarium. Following some disagreement about the reorganization of the paper, he sued for wrongful dismissal. According to the court, he could not sue for wrongful dismissal because he did not have a contract of employment. Instead, he was a volunteer. There were several reasons for this, including:
• he was only paid an honorarium
• he was not interviewed or hired by the society
• he was not assigned specific tasks or given direction
• there was no provision for discipline or discharge
• there was no common intention of the parties to enter into a contract.
The difference between a volunteer and an employee may not always be entirely clear. For example, the definition of employee under British Columbia’s Employment Standards Act includes “a person an employer allows, directly or indirectly, to perform work normally performed by an employee.”
According to a passage that had previously appeared on the website of the B.C. Ministry of Labour and Citizens’ Services and has been quoted elsewhere, “Volunteers are persons who choose to provide services for non-profit organizations or charities for which they do not expect compensation. In a profit-based organization, any person allowed, directly or indirectly, to perform work normally done by employees is considered to be an employee, not a volunteer.”
Even though volunteers do not have contracts of employment, some of the legal protections granted to employees under various pieces of employment legislation are frequently extended to at least some workers who provide their services without remuneration. For example, in Decision No. 1461/08, the Ontario Workplace Safety and Insurance Appeals Tribunal found a woman who was injured while on an unpaid tryout for a job was entitled to recover workers’ compensation benefits for the period of time she was unable to work. The woman was a learner who was working through an informal training arrangement, ruled the tribunal. The situation would probably have been different, however, if she was working in an unpaid work placement through a college or university.
Brian Kreissl is the managing editor of Consult Carswell. For more information, visit www.consultcarswell.com.
