The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The accident employer (“the employer”) is appealing a decision made by the Workers Compensation Board (“WCB”) Assessment Committee which determined that the worker was an employee of the employer and was therefore entitled to compensation benefits. A hearing was held on April 20, 2010 to consider the matter.

Issue

Whether or not the injured worker should be considered an independent contractor or an employee of the employer.

Decision

That the worker is an independent contractor.

Background

The worker was working as a replacement for a Rural Suburban Mail Carrier (RSMC) when he slipped on ice and fell in the employer’s parking lot on March 15, 2007.

The worker filed a claim with the WCB for injuries to his back, left arm, elbow and hip. On March 21, 2007, he advised a WCB adjudicator that he used his van on a daily basis to deliver mail and that he was a term/casual employee of the employer. He provided the WCB on April 3, 2007 with a copy of a pay stub issued to him by the employer confirming earnings for “replacement vehicle expense pay” and “replacement pay”.

On April 12, 2007, the employer’s representative advised the WCB that the worker was a contractor, not an employee and was therefore not covered by the Government Employees Compensation Act (“GECA”), the compensation system for federal government employees and employees of federal crown corporations. Accordingly the worker was advised by the WCB that his claim for compensation was being disallowed as he had no WCB coverage. The worker subsequently confirmed that he had no WCB coverage of his own as a contractor.

In a submission to the WCB dated May 3, 2007, the worker’s union representative noted that the worker was a replacement RSMC contractor with the employer and had suffered injuries while performing his duties. He argued that there was no legislative basis in either The Workers Compensation Act (the WCA) or under GECA to support the employer’s position that the worker was not its employee. The union representative relied upon WCB Policy 35.10.50, on Independent Contractors, which deems persons working in a compulsory industry to be workers, and a Review Office decision from British Columbia in which an RSMC replacement worker was found to be an employee. He also provided a copy of the Leave Voucher signed by the worker and an employer representative which, in his submission demonstrated a contractual relationship between the worker and the employer.

On June 28, 2007 a WCB adjudicator advised the worker that his claim for injuries had not been approved as the worker was a contractor rather than an employee and therefore did not have coverage under GECA. On August 7, 2007, the union representative appealed the decision to the WCB’s Assessment Committee.

On August 21, 2007 the WCB made inquiries of the employer as to the worker’s status. In response the employer wrote to Human Resources and Social Development Canada (“HRSDC”) on November 6, 20007 to request that it determine whether the worker was an employee under GECA. That request was forwarded by HRSDC to the WCB by letter dated November 21, 2007, in which it advised that:

“As outlined in our administrative agreement, the definition of employee in the GECA must be applied (not the definition of worker as in the Manitoba Act) when determining employee status pursuant to a GECA claim. Thank you.”

On January 23, 2008, the Assessment Committee considered the matter and determined that the WCB was within its jurisdiction to make decisions with respect to the compensation of federal employees. It concluded that the worker was eligible for WCB benefits as it found him to be a worker of the employer and not an independent contractor. In doing so it applied the definition of worker under the Act and the “WCB Business Test”, and concluded that the worker “does not meet the criteria to be registered as an independent contractor”.

The employer appealed the Assessment Committee’s decision to the Appeal Commission on April 8, 2008, and an oral hearing was held on December 1, 2008. The Appeal Commission determined that the WCB did not have the jurisdiction to determine the status of the injured worker. It further concluded that if it in fact had jurisdiction, it would have concluded that the worker was an independent contractor and not an employee within the meaning of GECA.

Thereafter the WCB requested pursuant to section 60.9 of the Act that the Appeal Commission’s decision be reviewed, as the WCB had not been provided with notice of the hearing.

On August 24, 2009 the Board of Directors stayed Appeal Commission Decision No. 20/09 and ordered that the Appeal Commission conduct a new hearing. A new hearing was arranged and took place on April 20, 2010.

Reasons

Chairperson Dangerfield and Commissioner Simoneau:

At this appeal the employer and the WCB were represented by legal counsel. The worker was present and was represented by his union representatives.

Of necessity the stated issue requires this panel to consider and determine two preliminary issues, namely:

1. Whether the WCB, and hence this panel, has the jurisdiction to determine whether the worker is an employee or an independent contractor under GECA,; and

2. If the WCB has the jurisdiction, what law should be applied to determine the stated issue of whether or not the worker is an independent contractor or an employee?

In the event this panel concludes that the WCB has jurisdiction, the third and final issue to be determined by the panel is whether in fact the worker is an independent contractor or an employee.

At the outset of the hearing it was agreed by all of the parties that they would rely on the transcript of the proceedings before the Appeal Commission on December 1, 2008. In addition, one of the two witnesses at that hearing, the Director of the employer’s RSMC workforce, was present by teleconference, and provided further evidence in response to questions from the employer’s counsel and from the panel.

Jurisdiction

The Assessment Committee determined on January 23, 2008 that the WCB had jurisdiction to determine the worker’s status as the WCB is the administrator under the administrative agreement entered into with the federal government. It relied in particular on subsection 4(2) of GECA which provides that “benefits are to be paid at the same rate and under the same conditions as are provided under the law of the Province where the employee is usually employed”.

The WCB argued before this panel that while it has jurisdiction to determine the worker’s status, it is for reasons other than those expressed in the Assessment Committee’s decision. The WCB concurred with the employer’s submission, and we agree, that the status of whether an individual is an employee is not a matter that is reasonably incidental to a ‘rate’ or ‘condition’ under which compensation can be paid. The WCB relied instead on subsection 4 (3) of GECA which provides:

(3) Compensation under subsection (1) shall be determined by

(a) the same board, officers or authority as is or are established by the law of the province for determining compensation for workmen and dependents of deceased workmen employed by persons other than Her Majesty; or

(b) such other board, officers or authority, or such court, as the Governor in Council may direct.

The WCB is the entity established by the Province of Manitoba for determining compensation for workers. That jurisdiction is extended to include compensation for employees of the federal government under subsection 4(8) of the Act which permits the WCB to enter into agreements with the Government of Canada for the provision of compensation. Pursuant to that authority, the WCB entered into an agreement with Her Majesty the Queen in right of Canada on December 19, 1995. That agreement outlines the responsibilities of the WCB in respect of claims for compensation of employees of the federal government. Section 4 provides:

The Board shall adjudicate claims from employees involved in an accident or affected by an occupational disease . . . (emphasis added)

The employer argued that while subsections 4(2) and (3) of GECA provide the WCB with the jurisdiction to determine whether an individual has suffered a work-related injury or illness, they do not confer on the WCB the authority to determine whether an individual is an employee under GECA. The determination of “employee” status for the purposes of GECA, it argued, is a matter to be decided by HRSDC, the federal government department charged with administering GECA, not by a provincial workers compensation board. In support of its position the employer relied on an “Employers’ Guide to the Government Employees’ Compensation Act” published by HRSDC which provides that:

HRSDC determines whether the injured person is an employee for the purposes of the Government Employees’ Compensation Act. Claims are checked immediately for accuracy and completeness, countersigned, then forwarded to the appropriate workers’ compensation authority. The compensation authority decides whether the disablement is the result of an occupational injury or disease, and determines the benefits to be provided.

Further, the employer pointed to a recommendation made by an Advisory Committee for the Review of the Government Employees Compensation Act that “the GECA clearly stipulate that it is the federal Crown that determines who is an ‘employee’ for the purposes of GECA”. The employer argues that it is only after HRSDC has determined that an individual is an employee under GECA that the WCB is then entitled to determine the amount of compensation and the conditions under which compensation will be provided under subsection 4 (2) of GECA.

Guidelines and recommendations do not, of course grant jurisdiction under GECA. In our view, it is subsection 4(3) of GECA which very clearly vests the WCB with the authority to determine entitlement to compensation of a federal government employee in accordance with subsections 4(1) and (2) of GECA. We concur with the findings of the British Columbia Court of Appeal in Canadian Broadcasting Corporation v. Luo [2009] B.C.J. No. 1559 that it “strains the language of s. 4” to conclude that the WCB is authorized to make significant decisions with respect to whether a worker suffered a personal injury, whether that injury was caused by accident and whether that accident arose out of or in the course of employment, yet is not entitled to address the fundamental issue of whether the worker is even an employee under the provisions of GECA. We see no reservation of that authority under either GECA or in the 1995 agreement setting out the parameters for the administration of claims under GECA by the WCB. Indeed, the agreement very clearly suggests otherwise. Article 1.2 of Appendix “A” provides that:

1.2 Before adjudicating a claim not forwarded to the Board by the Minister’s Representative, the Board shall forward to the Minister’s Representative a request, in writing, for information on employee status.

That provision clearly contemplates that the Board cannot arbitrarily determine the issue of eligibility, but rather, must seek information, with respect to the employee status of a worker. That is precisely what occurred in this case. On August 21, 2007 the WCB adjudicator sent an inquiry to the employer seeking information as to the worker’s status, and in particular asking:

“Are regular RSMC employees of [the employer]? How are the replacement workers different than the regular RSMC workers?

What agreement (if any) is there between [the employer] and the Contractors that states they do not fall under GECA and would not be entitled to claim WCB.

Can Canada Post dismiss these contractors at any time or do they have to complete their contract?”

The employer requested that HRSDC respond to the inquiry and it did so, by simply advising:

“As outlined in our administrative agreement, the definition of employee in the GECA must be applied (not the definition of worker as in the Manitoba Act) when determining employee status pursuant to a GECA claim. Thank you.”

It would appear from HRSDC’s response that it did not view its role to make a unilateral determination, but rather to provide “information” as contemplated in Article 1.2 of the Agreement. It would then be the responsibility of the WCB to “adjudicate” the worker’s entitlement to compensation pursuant to subsection 4 (3) of GECA and the administrative agreement.

This would be consistent with the conclusions of the Nova Scotia Court of Appeal in Morrison (Estate) v. Cape Breton Development Corp. [2003] N.S.J. No. 353 which found at para 14 that GECA ought not to be “read more narrowly than its natural meaning might support”, and then at para 60:

“. . . s. 4 of GECA is about compensation, not about two discrete concepts of entitlement and compensation. It begins ‘4(1) Subject to this Act, compensation shall be paid to (a) an employee who is caused personal injury. . . ’ It should be read as a whole.”

In all of the circumstances we are satisfied that the WCB has the necessary jurisdiction to determine whether a claimant for compensation is an employee within the meaning of GECA. It is by way of subsection 4(3) of GECA that the federal government expressly devolved its authority to the WCB to determine what would otherwise fall within federal Constitutional jurisdiction.

If there is jurisdiction, which law applies?

The Assessment Committee applied the broad definition of “worker” in the Act and the “WCB Business Test” in arriving at the conclusion that the worker was an employee of the employer.

The employer and the WCB were in agreement that, in the event that this Panel finds that it has jurisdiction, the definition of employee under GECA is the operative provision. In contrast, the worker argued that in making its determination the Board should be able to rely upon the provisions of the Act and the related case law.

Subsection 4(1) of GECA provides that compensation shall be paid to “(a) an employee . . .” , which is then defined in section 2 as meaning:

(a) any person in the service of Her Majesty who is paid a direct wage or salary by or on behalf of Her Majesty,

(b) any member, officer or employee of any department, company, corporation, commission, board or agency established to perform a function or duty on behalf of the Government of Canada who is declared by the Minister with the approval of the Governor in Council to be an employee for the purposes of this Act . . . .

Pursuant to an Order-in-Council issued August 19, 1981 officers and employees of the employer were declared to be employees pursuant to section 2 of GECA.

While the worker argued that he was an employee by virtue of section (a), we find that section is limited to federal government employees, and is therefore not determinative in this case.

We find subsection 4(1) to be clear statutory direction that in administering claims for compensation under section 4(3) of GECA, the WCB must first determine whether the claimant is in fact an employee under the definition of “employee” provided by GECA.

It is apparent that under GECA the federal government has taken a narrow approach, in which the payment of compensation will be limited to employees who fall within specifically articulated categories. In contrast the provincial government has, for policy reasons, adopted a broader statutory definition of worker in order to maximize the number of workers brought into the workers compensation system.

The WCB does not have the jurisdiction to extend access to the compensation system for federal employees by broadening the definition of employee under GECA to include persons who would otherwise not qualify. There was no basis upon which the Assessment Committee could apply the definition of worker under the WCA to determine that the worker was an employee under the provisions of GECA.

Our conclusion that it is the GECA definition that is operative and not the concept of a worker under provincial legislation and policy is supported by the findings of the Nova Scotia Court of Appeal in Canada Post Corp. v. Nova Scotia (Worker’s Compensation Appeals Tribunal), 2004 NSCA 83. In considering the interaction between the federal and provincial compensation systems, the court stated:

“The provincial workers’ compensation scheme governs claims submitted under GECA provided that:

(a) the provision in issue is reasonably incidental to a ‘rate’ or ‘condition’ governing compensation under the law of the province, and

(b) the provision is not otherwise in conflict with GECA.”

The definition of “worker” under provincial legislation conflicts with the definition of “employee” under GECA, and further it is not a provision that is reasonably incidental to a ‘rate’ or a ‘condition’. Quite clearly, therefore, in that respect the provincial workers compensation system does not govern. We must look to the provisions of GECA on this issue.

Is the worker an employee or an independent contractor?

The employer argued that the worker was an independent contractor, whereas the worker submitted that he was an employee of the employer, and hence an employee under GECA. The WCB took no position with respect to that issue, except to say that it is an issue that ought to be determined by this Panel.

In determining whether the worker was an employee of the employer we have considered the provisions of the Canada Post Corporation Act , R.S.C. 1985, c. C-10. Subsection 2 (1) provides:

In this Act, . . .

“mail contractor” means a person who has entered into a contract with the Corporation for the transmission of mail, which contract has not expired or been terminated;

Subsection 13 (5) provides that:

(4) Notwithstanding any provision of Part I of the Canada Labour Code, for the purposes of the application of that Part to the Corporation and to officers and employees of the Corporation, a mail contractor is deemed not to be a dependent contractor or an employee within the meaning of those terms in subsection 3(1) of that Act.

Accordingly, by statute, a person performing the duties of a mail contractor is neither an employee nor a dependent contractor. Nonetheless, in 2004 the employer and the Union opted to treat mail contractors as employees, by negotiating that status through the collective bargaining process. Replacement workers such as the worker in this case, were left outside of that scope by virtue of Article 14.02 of the Collective Agreement which provides that:

The replacement shall not be considered an employee of the Corporation while performing such work.

Accordingly, were it not for the Collective Agreement arrived at in 2004, all mail contractors would continue to be independent contractors. The Collective Agreement does not, however, bestow employment status on replacement workers.

In the present case it was argued on behalf of the worker that the decision of the British Columbia Workers Compensation Board Review Office in Spencer supported the conclusion that a replacement worker for a RSMC was “an employee under GECA as she was in the service of the federal employer and was paid a direct wage or salary by the federal employer”. In that case the Review Office considered the provisions of the British Columbia workers compensation legislation, the related policies and the relevant provisions in GECA, and concluded that there was an employment relationship between Canada Post and the replacement worker. In doing so the Review Office took into account the RSMC Leave Voucher which it concluded was a “written contract between the applicant and the federal employer”. It applied a WCB Policy providing that where a contract creates an employment relationship, an individual is a worker. It also found that the service performed was a service of labour, there was a significant amount of control exercised over the worker by the employer via the criminal check and the control over the time and place of work via pre-determined routes. It took into account the fact the worker bore no significant chance of profit or risk of loss, the fact both the RSMC and the replacement were required to use their own vehicles, the absence of evidence regarding whether the replacement could hire other persons and significantly, that the replacement performed essentially the same duties and had the same responsibilities and remuneration as the RSMC.

Counsel for both the employer and for the WCB noted that the Review Committee in Spencer relied on the definition of worker taken from the British Columbia Worker’s Compensation Act, which in their respective views was incorrect. We concur in that assessment for the same reasons we have concluded that the Assessment Committee in this case erred in its own application of provincial workers compensation provisions to determine the issue.

Replacements for RSMCs have, on other occasions been declared to be independent contractors rather than employees. In Plant v. Canada (Minister of National Revenue – M.N.R.) [2008] 3 C.T.C. 2303, the Tax Court of Canada considered an appeal from a decision by Revenue Canada declaring a replacement for a RSMC to be an independent contractor rather than an employee. The replacement worker was trained by the RSMC, performed the same duties as the RSMC, was required to complete a security check, used her own vehicle and was responsible for all costs and expenses. The replacement worker was sometimes paid by the RSMC and sometimes by Canada Post. She received a fixed daily rate for covering the route and for using her own vehicle, but was unable to join the union, received no employee benefits or paid holidays and was able to decline any engagement. She was required to carry her own liability insurance. In dismissing the worker’s appeal, Webb T.C. J. considered the findings of Major, J. of the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] S.C. J. 61, 2001 SCC 59 at paras 47 and 48:

47 Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J. A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.

48 It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.

Webb T.C.J. concluded that replacement carriers were independent contractors and not employees. In doing so he made specific note of the fact that the worker was not a party to the Collective Agreement signed in 2004 which, in his view created a new category of employees. While he acknowledged the attempt by Canada Post to characterize the worker as a replacement contractor via a Leave Voucher, he noted that the words on the back of the form were difficult to read and he consequently gave them no weight. Although he found that the deeming provision in subsection 13(5) of the Canada Post Corporation Act was not applicable for the purposes of the Employment Insurance Act or Canada Pension Act, he noted the findings of the Federal Court of Appeal in Canada Post Corporation v. Association of Rural Route Mail Couriers, [1989] 1 F.C. 176 at para 41:

“ . . . All this material serves to throw light on the situation as it existed prior to the passing of the Canada Post Corporation Act. That situation, as is common ground here, was that rural mail couriers were considered to be mail contractors and not postal employees. I have already indicated that I think the provisions of the Canada Post Corporation Act are clear and are to the same effect. That statute, far from altering the position of the rural mail carriers, continued it unchanged. (emphasis added)

Similarly in Laperriere v. Canada (Minister of National Revenue – M.N.R.) [2007] T.C.J. No. 170 replacement workers were also determined to be independent contractors rather than employees. In his decision Rowe, D.J.T.C. applied the indicia articulated by the Supreme Court in Sagaz (supra), and also noted that the replacement worker was not an employee because subsection 13(5) of the Canada Post Corporation Act deemed her not to be a dependent contractor or an employee.

While we recognize that subsection 13(5) of the Canada Post Corporation Act is not directly applicable for the purposes of GECA, it nonetheless reflects the status of mail carriers generally, absent any other statutory provision or negotiated terms of employment. Even in the absence of subsection 13(5), however, we find that on a balance of probabilities, the worker was an independent contractor. In arriving at this finding we have also taken into account a number of factors which lead us to the conclusion that at common law the worker is an independent contractor and not an employee:

1. The worker was not hired by the employer, rather he was hired and directed by the RSMC. Once a particular contract between an RSMC and a replacement is complete, it is entirely within the discretion of the RSMC whether to rehire the replacement.

2. The worker was required to work a minimum of one shift per year, and was able to decline an engagement for any reason.

3. The RSMC was responsible for training the worker in the sorting and delivery of the mail and was responsible for paying the replacement for the training time.

4. The worker was supervised by the RSMC, and was not subject to the employer’s progressive discipline policy. Only in circumstances such as a theft of the mail would the employer direct that the RSMC not use the replacement worker’s services.

5. While there was an element of control by the employer with respect to the outcome i.e. that the mail was delivered on a timely basis and that outgoing mail was returned to the post office, the worker was free to perform his work in whatever manner he chose, providing the route was completed.

6. The worker was required to obtain a security clearance, by remitting a consent form to the RSMC, who would subsequently be notified when the security clearance was approved.

7. The worker was paid a fixed amount per day for delivery and by way of a vehicle allowance, regardless of how many hours it took to complete the route. As such, there was little if any opportunity for profit or risk of loss, save for a potential risk associated with vehicle expenses being in excess of the daily fixed rate.

8. While RSMCs are paid as employees and receive a T4 slip, the replacement would receive a T-1204 as a contractor.

9. The worker did not receive any employment related benefits which are available to RSMCs, such as vacation time, health and welfare benefits, other paid leaves, or pension benefits.

10. As a replacement the worker would not accrue seniority, was not part of the union and had no ability to bid internally on jobs with the employer.

11. The worker was required to use his own vehicle, an expensive “tool” which is suggestive of an independent contractor relationship.

12. The worker was not required to wear a uniform or logo and his vehicle bore no signage.

Without doubt the employer intended to hire the worker as an independent contractor, as evidenced by both the Collective Agreement and the Leave Voucher, in which the worker acknowledged that he “is not, nor will he be deemed to be an employee of [the employer]”, and that “it is his . . . sole responsibility to obtain and maintain such worker’s compensation or other coverage as may be required”.

The fact that sophisticated parties such as the union and the employer determined through collective bargaining that these workers would remain independent contractors, is not determinative in the case of the worker who was neither privy to the agreement, nor provided with a copy if its relevant terms. In respect of the Leave Voucher, he testified that:

“Nobody explained to me that contract on the back had anything to do with anything . . . I had no idea there was something on the back of that thing, to tell you the truth. You know, no, I did not read the back of that.”

Nonetheless, we find that the worker must have known that his relationship did not give rise to things typically associated with an employee relationship such as employee benefits, vacation pay and union membership. The worker’s evidence before the first Appeal Panel was that he had worked as a replacement on three occasions, twice on his own and once while assisting his spouse.

In all of the circumstances it is our view the Assessment Committee erred when it concluded that the injured worker was an employee. It applied provincial legislation which had no application to a federal worker. It ought to have considered whether the worker was an employee of the employer under GECA and at common law. It failed to do so.

The appeal is therefore allowed.

Panel Members

K. Dangerfield, Presiding Officer
B. Simoneau, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 17th day of June, 2010

Commissioner's Dissent

Commissioner Walker’s dissent

I agree with the majority on the first two decisions, that the Manitoba WCB has jurisdiction to decide if the worker should be considered an employee of the employer, and the legislation to be applied is the Government Employees Compensation Act (GECA).

The third decision that the panel was asked to render, should the worker be considered an independent contractor or an employee of the employer. I find that the worker should be considered an employee of the employer for the limited purposes of GECA.

Reasons:

Applicable Legislation:

Pursuant to subsection 4(1) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Workers Compensation Act. The relevant sections of the legislation read as follows:

4. (1) Subject to this Act, compensation shall be paid to

a) an employee who

i) is caused personal injury by an accident arising out of and in the course of his employment, or……

Section 2 of the GECA defines “employee” as follows:

“employee” means

a) any person in the service of Her Majesty who is paid a direct wage or salary by or on behalf of Her Majesty.

b) any member, officer or employee of any department, company, corporation, commission, board or agency established to perform a function or duty on behalf of the Government of Canada who is declared by the Minister with the approval of the Governor in Council to be an employee for the purposes of this Act….

Analysis:

Prior to interpreting and applying GECA, the jurisprudence submitted for the panels’ consideration is an important starting point. As noted by the Nova Scotia Court of Appeal in the case of Morrison (Estate) v. Cape Breton Development Corp. 2003 NSCA 103, at paragraph 14:

The language of GECA is intended to be general and inclusive because its purpose is to provide federal employees with workers’ compensation benefits in accordance with the particular wording of the workers’ compensation acts of various provinces. The Parliamentary objective of making one federal act mesh with many provincial ones would be more difficult to achieve if GECA were to be read more narrowly than its natural meaning might support. Like other workers compensation legislation it is to be construed liberally and in favour of all workers within its purview. (See Workmen’s Compensation Board v. Theed, [1940] S.C.R. 553)

We must also keep in mind the principals set out by Justice Meredith that guarantees an independent system which grants compensation to injured workers, regardless of fault and is funded by employers who are protected from civil suit.

It is fundamental to all workers compensation systems that any person doing identical work as another worker who is covered for injury must enjoy the same coverage. It is for this reason that employers’ mandatory participation is determined by industry and not individual workplaces. Further, it is not reasonable that doing the job as a temporary replacement for a worker who is covered, disentitles the replacement from coverage.

The purpose of GECA, as noted above, is to provide consistency in workers compensation benefits for employees of the federal government in the various provinces that they may be working in. GECA outlines specifically what must be determined for a claim to be accepted.

The GECA firstly requires a determination that the worker be an employee and outlines a definition of employee in Section 2, quoted above. Some confusion has been created in trying to decide the status of the worker in relation to the employer’s criteria for determining employment status compared to the definition of employee for the purpose of GECA. To address the confusion, we must separate the employer’s criteria for assessing whether someone is an employee from the definition of employee in GECA. Our responsibility is only to determine whether the definition of employee in GECA has been met.

Turning now to this claim, it is important that the issue of employee be addressed first by applying the wording of Section 2 (b).

According to evidence submitted on behalf of the worker, the collective agreement between the employer and the union provides that:

…an employee who is absent from work for any reason shall take the necessary measures to have a qualified replacement cover his or her route for the entire duration of his or her absence.

And further;

Such replacement must sign a contract for services with the Corporation in the form of a voucher provided by the Corporation for such purposes.

Evidence presented has established that the worker was acting as a contract person to take the place of a full time RSMC to sort, deliver and pick up mail for customers on a regular route. He did so in his own vehicle and was paid by the employer the same rate that the RSMC was paid for that particular route.

The worker was fulfilling a primary role that the RSMC was doing with the exception that the RSMC was a full time employee with the employer and enjoyed benefits and privileges accordingly. If the RSMC have suffered the accident and injury on March 15, 2007, they would have been paid Manitoba WCB benefits accordingly. The worker’s status as a replacement for the RSMC should not have disqualified him to WCB benefits under the provisions of GECA.

I have concluded that the work the worker was doing on March 15, 2007 was to fulfill a contract, referred to as a voucher, on behalf of the employer to sort and deliver mail as well as retrieve outgoing mail from delivery boxes and return it to the employer’s depot for processing. By doing so, I determine the worker would meet the definition of employee under Section 2 (b) of GECA.

I find that when fulfilling replacement duties for an RSMC, the worker was a temporary employee of the employer for the purpose of GECA and only for the adjudicative purpose of GECA. I would dismiss the employer’s appeal.

P. Walker

Commissioner

Signed at Winnipeg, this 17^th day of June, 2010.