The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was an employee of their firm at the time of his accident on July 17, 2012.  A hearing was held on May 8, 2013 to consider the matter and reconvened November 27, 2013 and January 16, 2014.

Issue

Whether or not the worker should be considered an employee of the firm.

Decision

That the worker should not be considered an employee of the firm.

Decision: Unanimous

Background

On July 24, 2012, a worker filed a claim with the WCB for a right ankle injury that occurred on July 17, 2012. The worker stated:

It was my first day on the job. I was trying to put up dry wall on the ceiling with a co-worker. It was a ten foot ceiling, we were using three foot ladders and I am six feet tall. I was standing on the foot ladder, I lost my balance I fell off and landed on my right ankle. I heard a pop/break in my right ankle. My supervisor came over and said "this is bad." The supervisor said it would not look that good if an ambulance came onto the site. I had to call a friend and they came and drove me to the hospital.

On July 25, 2012, the employer called the WCB to advise that the worker ("helper") was not an employee of their firm at the time of the accident. The employer explained that they asked one of their employees ("TG") to bring in a helper to assist him with a particular job. TG brought in the helper and they started to work. The helper was to undergo a safety orientation and two interviews as part of the hiring process.

The WCB adjudicator spoke with the supervisor that was present on July 17, 2012. The supervisor noted that TG showed up with the helper and after introductions, he told TG to get to work and they would do a safety orientation at 9:30. The supervisor then left the area. The next thing he heard was that the helper fell and hurt his ankle. The supervisor indicated that he supervised 30 or more workers and it was impossible to watch them at all times.

On July 30, 2012, the helper advised the WCB that he was brought to the work site by TG, as TG was told to hire someone to help him out on the job. They showed up at the work site at 7:00 a.m. He was then introduced to the site supervisor and was told to get to work. He was told that a safety orientation would be done at 9:30 a.m. The helper indicated that he was given a safety vest and was told to put on his hard hat and boots and to follow the co-worker and the site supervisor to the second story. The helper said he was told that the pay was $15.00 per hour at 40 hours per week. They continued working until approximately 9:30 when he fell and broke his ankle by falling off a ladder.

The adjudicator spoke with TG on July 30, 2012. He stated that he was told by the firm's owner to bring a helper with him to complete the jobs that they were giving him to do. He brought the helper in at 7:00 a.m. on the date of accident to meet the supervisor and start working. He introduced the helper to the supervisor and then the supervisor told them both to get to work. The supervisor showed them the area where they would be working and they would do the safety orientation at 9:30 a.m. The supervisor then left the area. They started working and when they tried to lift a sheet to the ceiling, the helper fell off his ladder and hurt his ankle.

On August 1, 2012, the WCB adjudicator contacted the firm's owner to advise that the WCB was accepting the helper's claim as he was deemed to be a worker of the employer. When asked to provide payroll information, the employer indicated that he was unable to do so as he hadn't met the helper and did not know what his skill set was. The employer indicated that the helper was never hired so he should not be deemed a worker by the WCB.

On August 15, 2012, the employer outlined the course of events that occurred at the work site on the morning of July 17, 2012. He concluded that the helper was not in their employ at the time of the accident and therefore his claim for compensation should not be accepted.

On October 30, 2012, the Assessment Committee determined that the helper was a worker of the firm and was entitled to benefits and services of the WCB. The Assessment Committee's decision was based on the finding that the site supervisor told the witness (TG) and the helper to start working and that the safety orientation would be done at 9:30 a.m. The accident was then reported to the employer at or around the time of the injury on July 17, 2012. On November 16, 2012, the employer appealed the decision to the Appeal Commission and an oral hearing was arranged.

The hearing was first convened on May 8, 2013. Subsequent to the hearing, it was determined that the worker was not advised of the hearing and of his right to participate in the appeal. The worker was contacted and informed of this right to participate in the appeal. He advised that he wished to attend and participate in the hearing. In consultation with the parties, it was agreed that the hearing would reconvene on November 27, 2013. The worker did not attend and did not advise the Appeal Commission of his inability to attend the reconvened hearing on November 27, 2013. The worker was again contacted and confirmed that he wished to participate in the appeal. A new hearing date of January 16, 2014 was arranged in consultation with the parties. The worker acknowledged the new hearing date and indicated that he would attend. The worker failed to attend the January 16, 2014 hearing and failed to contact the Appeal Commission to advise that he was unable to attend. The hearing reconvened on January 16, 2014 and a decision was subsequently made.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This appeal deals with whether the helper should be considered a worker of the firm.

Subsection 1(1) of the Act defines the terms employer and worker. It provides that:

"employer" includes

(a) a person

(i) who has in service under a contract for hiring or apprenticeship, written or oral, expressed or implied, a person engaged in work in or about an industry, or…

(c) a person that the board has determined under subsection 60(2.1) to be an employer for the purposes of Part I…

"worker" includes

(a) a person, whether or not under the age of 18 years, who enters into or works under a contract of service or apprenticeship, written or oral, expressed or implied, whether by way of manual labour or otherwise,

(b) a learner…

(d) a person deemed to be a worker under subsection 60(2.1)...

(f) an independent contractor who is admitted by the board as being within the scope of Part I under section 75…

Section 60(2.1) of the Act provides as follows:

60(2.1) Deemed worker and employer

Notwithstanding the other provisions of this Act, where a person who is not a worker under this Part performs work for the benefit of another person, the board may deem the first person to be a worker, and the second person to be the employer of the first person, within the meaning of this Act; and the board may determine an amount that shall be deemed to be the earnings of the first person, for the purpose of this Part.

WCB Policy 35.10.50, Status of Workers, Independent Contractors and Employers, (the "Policy") explains how the WCB determines a person's status as a worker, employer or independent contractor for the purposes of the Act. It also describes the circumstances in which the WCB will deem one person to be the worker of another.

Helper's Position

The helper did not participate in the initial hearing or the reconvened hearing.

Firm's Position

The employer was represented by its general manager. He argued that the helper was not a worker for the purposes of the Act. He submitted that while he suggested that their employee TG bring a helper to help him with the work, he did not guarantee that the helper would be hired. He said that he did not meet the helper, did not interview the helper and did not hire him. He also said that TG did not have authority to hire on behalf of the employer.

The general manager said that the standard practice at the worksite is for all new hires to attend site/safety orientations and be interviewed by the general manager before they are hired and commence work. The supervisor on the site also did not hire helpers without consultation with the general manager.

The general manager said that he did not know whether TG would bring a helper on that date, but that TG knew the helper would have to attend an interview before he was hired. TG had worked for the firm previously, and was rehired. This was his first day back, but he was familiar with how the firm hired. TG himself was interviewed by the general manager. He said he suggested to TG that he bring a helper but denied that he told TG to do so.

In reply to a question, the general manager advised that there was no urgency to complete the work and the firm was not at risk of being penalized under the contract they were working under at that site.

The general manager advised that he would be calling a supervisor and a tradesman as witnesses. He said the supervisor met with TG and the helper and also spoke with the WCB claims manager. The tradesman overheard the discussions between the supervisor and TG and the helper.

The Supervisor's evidence:

The supervisor testified that he met TG and the helper at 7:30 a.m. on July 17, 2012. He said he was by the employer's trailer when TG and the helper walked up to him. TG introduced him to the helper, said that he’s got his helper to work with him. He indicated that "I told him at that point in time -- I said, Well, (TG), you go onto the site and, [helper], I told him to stay at the trailer and that I would be -- I had -- there’s other guys on site I had to deal with to get them going and I would be -- have to be back to do a safety orientation with [helper] plus an interview."

The supervisor advised there are two orientations that the helper would be required to attend, one by the general contractor and one by the employer. The supervisor told the helper he would be back "probably around 9:15, 9:30." He told him to wait outside the trailer. The supervisor said that he returned about 8:15 and the helper was gone and "so I thought he had left the site." At about 8:45 TG came to the supervisor to advise that the helper stepped off a bench and hurt his ankle, which he thought was broken or twisted. He didn’t know whether it was broken or twisted at that point in time.

The supervisor denied that he took both TG and the helper to the specific job location. He said that TG was familiar with the worksite as he had previously visited the worksite. He said he gave TG directions on where to work.

The supervisor admitted that when he saw the helper was injured he commented that "This doesn't look good." He explained that:

"And like I said, when I saw him on the floor, I mean, I said, This doesn’t look good, and I didn’t realize it was a broken ankle, a twisted ankle, and I took a look at it. It wasn’t blue or whatever. It was swollen, so it looked like it was a twist to me. And he was able to stand up and he wasn’t -- he couldn’t put too much pressure on his one foot, so [TG] said, I’ll -- he made the call to get somebody there and it was -- it ended up being [the helper's] mum and a couple of fellows helped him out, out of the building."

In answer to a question, the supervisor told the panel that the general contractor usually does an orientation and that the employer also does one after the general contractor. The supervisor advised that he did not have any conversation with the helper about remuneration and confirmed that hiring decisions are made by the general manager and not by him.

Tradesman's Evidence

The tradesman explained that he had some administrative duties related to a certification process that the employer is participating in, so that on this particular morning he was working in the employer's trailer.

The tradesman testified that he was working in the employer's trailer on the morning of July 17, 2012. He said his desk was by the door so he could hear the conversation between the supervisor and the helper which took place in front of the trailer. He said that "I heard [supervisor] tell [TG] that he could go to work and he told [helper] that he would return shortly and he would talk to him about starting with TG and that was pretty much what I heard. [Supervisor] had to take off and then I left the trailer about 20, 25 minutes later and I didn’t see anybody outside."

Analysis

The issue before the panel is whether the helper should be considered a worker of the firm. For the employer's appeal to be successful, the panel must find that the helper was not a worker as defined by the Act.

After considering all the evidence, the panel finds that the helper was not a worker for the purposes of the Act. In reaching this decision, the panel relies upon the following:

• the general manager's evidence that all potential workers have to undergo a personal interview before they are hired.
• the evidence that the helper was not interviewed, was not offered a position nor authorized to work by the employer or its agents.
• the supervisor's evidence that the helper was instructed to wait at the employer's trailer and was required to attend safety orientations before he could start work.
• the tradesman's evidence confirming that the helper was not authorized or directed to start work.
• the general manager's evidence that there was no urgency in completing the work.

The panel is not able to find evidence that the helper entered into work under a contract of service or apprenticeship, written or oral, expressed or implied, whether by manual labour or otherwise.

The panel finds, on a balance of probabilities, that TG brought the helper to the worksite and allowed him to commence work. However, the panel is unable to find that TG acted with the authority of the employer in allowing the helper to commence working, and finds that the helper's actions in commencing to work was contrary to the express direction from the supervisor that he wait by the trailer as he had to attend safety orientations. The panel is unable to find from the facts that an implied contract was created or that TG was in any way acting as an agent of the employer to hire an employee. The suggestion by the general manager to TG that he bring a helper is not sufficient to create an employment contract. The panel finds from the evidence provided at the hearing that the general manager exerted an extraordinary amount of control over the hiring process for new hires, to the point of not delegating any of these responsibilities to an experienced supervisor. This does not accord with the notion that TG himself, a returning on-and-off employee, would have had the power or authority to offer a position and offer a specific wage to a new hire. As such, the panel places greater credibility to the evidence provided at the hearing of the general manager, supervisor and tradesman, than the evidence provided by TG and the helper.

While the panel acknowledges that the helper relied on the representations of TG that there was a job waiting for him with the employer at a stated wage and even purchased work boots for that purpose, it is the panel's view that this reliance is not sufficient to establish an employment relationship under the Act. TG, himself, may have been well-intentioned in bringing his friend to the workplace for a potential job, but had no capacity to act on behalf of the employer to offer employment, or to bring the helper into the workplace and into a contract of service with the employer.

The panel also finds that this is not an appropriate case to apply subsection 60(2.1) and deem the helper to be a worker of the employer. The panel finds that this case does not fall within the sphere of WCB policy 35.10.50, Status of Workers, Independent Contractors and Employers.

The employer's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of January, 2014