The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)

In order to decide whether the claim is acceptable, the panel must determine whether the assault suffered by the worker arose out of and in the course of her employment. There are two elements to the phrase “arising out of and in the course of employment.” Both elements must be present for a claim to be acceptable.

The worker’s position:

The worker was represented by a worker advisor who submitted that the assault took place while the worker was both in the course of her workplace duties and it also arose out of her work. She was trying to collect a bill from a customer of the employer at the time of the assault and she was, therefore, working at the time. There were a number of disputed facts in the case, and the panel was urged to discount the evidence of the owner-manager and current employees as they had a vested interest in avoiding an increase in WCB premiums. Statements from two neutral witnesses confirmed that the worker did in fact work in different parts of the hotel other than the restaurant and kitchen, which was in keeping with the worker’s version. Further, the evidence of the lounge patron confirmed that on the day of the incident, he thought that the worker appeared to be working. It was argued that this evidence confirmed that the worker was indeed working on the night in question and that there had been an event that led to the psychological condition. It was therefore submitted that the claim be found to be work related and accepted as such.

The employer’s position:

A representative from the employer was present at the hearing. He relied on his statement dated February 26, 2008 which he provided to the WCB. The employer was opposed to benefits being granted to the worker.

Analysis:

The key issue to be determined by the panel surrounds interpretation of the phrase “arising out of and in the course of employment” and whether the worker’s personal injury was caused by an accident which both arose “out of the employment” and “in the course of her employment.” The panel notes that no one denies that something happened on the date of the accident in the guest’s room, and there was uncontroverted evidence on the file that the incident caused the worker to develop a psychological injury. We therefore accept that the worker has an injury which resulted from the incident. As stated earlier, the primary issue in this case concerns the status of the worker at the relevant time and whether or not she was in “the course of employment” when the assault occurred. On a balance of probabilities, we are unable to find that the worker was in the course of her employment when she was assaulted.

Statutory Presumption

As a preliminary issue, the panel notes that the Act contains a statutory presumption. Subsection 4(5) provides as follows:

Presumption

4(5) Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.

As noted earlier, the panel is of the opinion that the primary issue in this case concerns whether the worker was in the course of her employment at the time of the incident. We accept that the incident “arose out of her employment” in the sense that it was caused by a hazard which resulted from the nature, conditions, or obligations of the employment.

In the absence of contrary evidence, the statutory presumption would apply to presume that the incident also occurred in the course of employment. In the present case, however, there is contrary evidence sufficient on a balance of probabilities to rebut the presumption, and therefore it does not apply.

Evidence concerning whether the worker was “in the course of employment”

At the hearing, the worker’s evidence was that her position with the employer was the kitchen/restaurant manager for food services for the hotel. She was responsible for all aspects of the operation of the kitchen and restaurant, the ordering, the cleanliness, the product, the production, hiring/firing staff, and generating sales. Food services for the hotel included food services supplied to the lounge. She was a salaried employee, so she was paid the same amount regardless of how many hours she worked. Although her scheduled work hours were from 10:00 am to 6:00 pm, if it was busy in the lounge or dining room at the end of her shift, she could not leave, but would stay to help out. She indicated that it was typical for her to work several hours past the end of her shift. The worker also indicated that a few months prior to the incident, in August 2007, the general manager for the hotel left the hotel and the owner did not replace her. As part of the management team, the worker slowly took on more and more tasks and responsibility at the hotel. When the owner/manager was away, the worker would often act as manager on duty (“MOD”).

The hotel was set up so that there was a kitchen, a dining room, a lounge and a tavern. At the time of the incident, the tavern was closed as it was under renovation. The staffing typically consisted of one cook, one waitress in the dining room, and one bartender in the lounge. The worker would float between the three areas and assist where needed. She also helped to count empties in the vendor.

On the day of the incident, the worker stated that the waitress left at 4:30 pm. The restaurant remained open until 9:00 pm, but it was not busy. This was typical for a Monday. The lounge was busier than normal so after the end of her shift at 6:00, she stayed to help out in the lounge. She stated that she was cleaning bottles, or mingling or talking to customers, asking them if they wanted drinks, which were the same sales generation tasks that she would do on a daily basis. When asked how many people were in the lounge, she stated that: “there was always people playing VLTs. There was approximately 28 to 30 VLT machines in the lounge and also like a standup bar area … it seemed six to ten people were sitting up at the bar or standing up there or waiting for drinks or to have their tickets cashed in.” The owner/general manager had left for the day and the worker indicated that she believed that she was the manager on duty. When asked directly whether she just went to the lounge after her shift for a drink, as opposed to working, the worker adamantly denied this was the case. The worker stated that drinking while working was not permitted by the employer. She acknowledged, however, that “quite frequently after work … it was common for the day shift to have beverages.” She confirmed that she would stay and socialize in the lounge. Over time, she had become friends with some of the regular customers, and her social world did include staying after work on occasion to have drinks with staff and regulars.

With respect to the events leading up to the assault, the worker’s evidence was that a long term hotel guest came into the lounge, ordered drinks for all the regulars who were sitting at the bar, then left without paying the tab. She said that the bartender “started freaking out” and saying that: “(The hotel guest) left … he didn’t pay his tab … now I am going to have to pay it out of my tips.” The worker said that she did not think anything of it. She felt it was her job so she said that she would just go down to the guest’s room down the hall and ask him to pay. The outstanding amount was about $20.00 and the worker’s plan was to knock on the hotel room door and ask the guest to go back to the lounge to pay the tab. It was when she went to the guest’s room that the assault occurred. She estimated that the time was approximately between 8:00 and 9:00 pm.

After the assault, the worker was shaken and upset. She sat in the office across the hall from the guest room for a while, then returned to the lounge. She told the bartender that: “you’re not going to be getting your money because (hotel guest) just assaulted me” and she sat down at the bar next to a regular patron whom she knew. The worker’s evidence was that she was shaken up and that she knew she was not going to be able to continue working that evening. The patron told her to have a drink, and she proceeded to have three shots of Sambuca. The worker was then given a ride home by the patron.

The panel also heard evidence from the general manager/owner of the employer. As he was not present during the evening of the assault, he was not able to give direct evidence regarding the events surrounding the incident. His evidence was generally limited to usual staffing and business practices, and matters which occurred after the night in question. The general manager did confirm that employees could not drink while working. He also confirmed that the cash registers at that time could not accommodate “tabs”, but it was occasionally done with well-known customers. In those cases, the bartender would leave a note with the deposit, and it would be reconciled the next day. This in fact occurred with this particular guest on the day in question.

Three witnesses were summoned by the panel. They were the bartender and cook who were on duty on the night in question, and the head of security for the employer. These three individuals gave written statements to the WCB regarding the circumstances surrounding the incident. The panel subpoenaed these individuals to obtain elaboration on their specific recollections. All three witnesses continued to be employed by the employer at the time of the hearing.

The bartender had very specific recollections of what occurred that evening, which differed in very important respects to the evidence given by the worker. The bartender’s evidence was that the worker came into the lounge after the end of her shift and had some drinks. This was a common practice for the worker and she would come to the lounge after her shift a few times per week. The bartender confirmed that the worker would help out in the lounge to cover for smoke breaks or if someone was running behind, but that evening she was not. The bartender stated that the lounge was pretty steady that evening, but that she was managing. She clearly denied that the worker was helping at all in the lounge. With respect to collection of the tab, the bartender admitted that she told the worker that the hotel guest had left without paying, but said that she was not worried about it. The guest had left without paying a couple of times before and on those occasions, he would come back and pay the next day. The bartender would not have to cover the money from her tips. She would just leave a note in the receipts when she cashed out. When the worker offered to go and get the money, the bartender said that she told the worker: “No, that’s okay. I’ll see him tomorrow.”

The cook who was on duty that evening testified that the worker used to drink in the lounge “pretty much after work all the time.” His evidence was that she was drinking in the lounge and was becoming drunk. The cook had no knowledge about the incident with the hotel guest. When questioned why he specifically remembered this day as opposed to a general recollection of other days, he stated that he had asked the worker for help that day, but she had “cussed me out” and refused to do so as she was drinking.

The last witness called was the head of security for the employer. The security officer was not employed at the time of the incident, but did start working for the employer shortly thereafter. He confirmed that on many occasions, he did see the worker assisting in the lounge after 7:00 or 8:00 pm. He had seen the worker drinking in the lounge before, at times intoxicated. He admitted that he had no direct knowledge about the day of the incident or whether the worker was drinking. His evidence concerned a conversation he had with the worker. He did not recall when it took place, but he recalls talking with the worker in the kitchen and she told him about the incident with the hotel guest. He distinctly recalled that the worker told him she was sitting down having some drinks in the lounge. He said that she told him that: “because the bartender was busy and she felt comfortable enough to deal with the individual, she would do it.” When challenged, the security officer was clear that the worker told him that she was having drinks before, as opposed to after the incident.

The other individual who may have been able to provide evidence was the regular patron who sat with the worker after the incident and gave her a ride home. A statement was given by the patron to the WCB. The witness was unclear on whether the worker was working when she went to collect the tab and whether she had been drinking before hand. He was able to confirm that the worker was extremely upset afterwards and that she consumed a few shots before he took her home. Given his lack of clear recollections on the key disputed issues of whether the worker was on duty prior to the incident, he was not called as a witness.

After reviewing the evidence as a whole, the panel finds that the worker was not in the course of employment when the incident occurred. In coming to this conclusion, we rely on the following:

• The worker’s evidence was that her scheduled shift ended at 6 pm, but that she continued to work to help out the bartender in the lounge. It was her practice to continue to work later if help was required in the lounge. The evidence of the bartender, however, was that it was steady, but not unusually so. The bartender was accustomed to working alone in the lounge and she was able to manage. The evidence of all the witnesses was that the regular staffing for the lounge was just a single bartender.
• The worker estimated that the incident occurred at about 7:30 pm. This would have been a full 1½ hours after the end of her scheduled shift. While the panel accepts that from time to time, the worker would help out in the lounge, the evidence did not support the position that the lounge was so busy that the worker’s assistance was required for 1½ hours past her usual work hours on that day.
• The evidence of the bartender and the cook was that the worker remained in the lounge after the end of her shift for social reasons. Their evidence was that she frequently stayed after hours to have a drink in the lounge. The security officer also confirmed that he had seen the worker drinking in the lounge before.
• The worker acknowledged that on occasion, she would stay and have beverages in the lounge after her work day was completed. Her social circle included individuals who regularly frequented the lounge.
• With respect to recollections of whether the worker was drinking prior to the incident, the panel found that the evidence of the cook could not be reliably linked to the night in question. Although he was clear that he observed the worker drinking on that evening, the panel was unconvinced that the cook was able to distinguish that specific evening from a generalized recollection of seeing the worker having a few drinks after her shift. His evidence does, however, corroborate the evidence of other witnesses that the worker did often drink in the bar after work.
• The evidence of the bartender was clear and specific. Several aspects of her evidence had external consistency with the evidence of others, specifically her evidence with respect to the type of drinks being consumed by the worker, the clothing worn by the worker that day and the manner in which the bar tab was accounted for after cashing out at the end of the day.
• The evidence of the security officer was that the worker had told him she was having a few drinks after work when the incident occurred. When challenged on the point, the security officer was clear in his recollection of what the worker had told him and the panel found him to be credible.
• The statement of the general manager shortly after the incident also reflected that the worker had told him that she was having a few drinks after work on the night in question.
• The statement of the lounge patron given to the WCB was that he could not recall seeing the worker drinking before the incident, but that he could not be certain as he was not paying attention to whether she was drinking or not. He recalled her puttering around, but could not state whether or not she was on the clock.
• The evidence of all of the witnesses was that employees were not permitted to consume alcohol during their shift. Thus, having a few drinks would be inconsistent with remaining on duty.
• Overall, the panel places greater weight on the evidence that the worker was socializing and consuming alcohol during the time period prior to the incident. The evidence as a whole supports the finding that there was a general pattern of socializing after the completion of her work duties. We find that she had completed her shift and remained at the employer’s premises past 6:00 pm for personal reasons. She was no longer in the course of her employment.

Although the panel has found that the worker was no longer in the course of her employment during the period just prior to the incident, we have given consideration as to whether the worker was put back into the course of employment when she went to the hotel guest’s room to ask that he pay his outstanding tab. On a balance of probabilities, we find that she did not resume employment.

The panel heard a considerable amount of evidence regarding whether the worker was the manager on duty (“MOD”) at the time of the incident. The manager on duty was the person who had access to master keys which could access the liquor room and the VLTs. The MOD would have general responsibility for the hotel operations as a whole when the general manager was not present. The employer strove to always have a MOD during operational hours when the beverage rooms were open. The evidence of the owner/manager was that he did not have a specific recollection, but that he believed he left the premises at approximately 5 pm that day. He noted that there were not strict guidelines in place at the time as operations were in flux. They were undergoing renovations and his previous general manager had left his employ approximately two months earlier and she had not yet been replaced. It was his understanding that the bartender was the MOD for the night shift.

The bartender’s evidence was also that she was the MOD at the time of the incident. The worker has alleged that she was the MOD. The evidence before the panel is that according to the schedule, the worker’s shift was over at 6 pm and unless it was busy, she was not required to stay later. In the circumstances, the panel questions why the worker would be the MOD when her shift was over and she did not have to be there. It would appear more likely that the bartender, whose shift continued until the close of business for that day, was the designated MOD.

When asked why she went to the room, the worker’s evidence was that the bartender was “freaking out” and upset that the hotel guest had left without paying because the difference would have to be made up from the bartender’s tips. This is contrary to the bartender’s evidence, which was that she was not particularly concerned about the tab. While the general practice was that staff was responsible for shortages, given that this was a long term hotel guest, she was not concerned that the tab could not be collected. On other occasions, he had walked out without paying, and the money was always paid the next day. She could simply leave a note in the cash register that the tab was not paid, and in fact, that is what she did that evening. The owner separately gave evidence that a note was left in the cash register receipts that night noting the outstanding balance from the guest. He considered this to be a normal although infrequent practice, and did not expect the bartender to be out of pocket. The monies were in fact returned the next day.

Both the worker and the bartender confirm that they discussed the outstanding tab and that the worker offered to go to the hotel guest’s room. The bartender states that she told the worker not to bother doing so. Nevertheless, the worker chose to go to the room. The bartender’s evidence was that at the time, the worker was showing signs of intoxication.

Considering all of the evidence, the panel is unable to find that the worker resumed the course of her employment when she went to the hotel room. Although she was purporting to be assisting in the collection of an unpaid tab, this was not part of her job duties. She was the kitchen and dining room supervisor, and the lounge operations were separate from her supervisory duties. While she did assist in the lounge, she was not in any way responsible for the cash balance of the lounge at the end of the day. Collection of the tab was not required to preserve the employer’s interests, as the bartender was responsible for the cash balance and any shortages. The bartender stated she was not concerned, as she knew the amount could be collected the next day. In fact, since the tab was owed by a long term guest who was well known to the employer, the money did not even have to come out of the bartender’s tips. The panel finds that the bartender specifically told the worker not to go to the room, yet the worker persisted in doing so. It may have been that her judgment was somewhat impaired by the drinks she consumed. While her intentions were nothing but good, we find that her actions were purely voluntary and were not in any way required nor reasonably expected by the employer. The task was not undertaken on the instruction or direction of the employer. The action was a matter of personal choice. As such, the worker was not in the course of her employment.

Overall, the panel does not question that the worker was hard working and dedicated to her position. Unfortunately, however, we are unable find that at the critical time, she was performing duties in the course of her employment. As a result, we must find that her claim is not acceptable. The appeal is dismissed.