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Acting outside course of employment may remove legal protections

O

ne of the main tenets of the workers’ compensation system is that it is funded by employers. The requirement for employer funding is part of the “historic trade-off” that protects employers from being sued by their employees and certain others in case of a workplace accident. In addition, injured workers are generally prevented from suing their employer, co-workers and workers of other employers who may have been involved in the incident, as long as those workers were acting “in the course of employment.”

The wording used above, including the word “generally,” indicates protection from civil action for co-workers and others is not absolute, as it depends on whether they were acting in the course of their employment at the time of the incident. The concept of “in the course of employment” generally includes performing tasks that are a part of your job, and performing tasks that are reasonably incidental to your employment. Based on the above, if a worker was injured by a co-worker who was doing something that was not part of her job, or something that was not reasonably expected by the employer, she may be exposed to a civil action by the injured worker or others.

The protection from civil action under the workers’ compensation system extends to executive officers of the organization who are not always considered to be “workers” under the legislation and not automatically covered by workers’ compensation premiums. This protection is important as executive officers, like the employer itself, want the assurance that in exchange for the premiums paid, workers are barred from bringing a civil action and their recourse is to claim for workers’ compensation benefits.

The issue that has been examined in these cases is whether the protection from civil action against the employer and executive officers is absolute. The short answer to the question is “no,” and, as always, whether or not a worker is barred from bringing a civil action is dependent on the circumstances of the specific case.

In one case, an Ontario worker brought a civil action against her employer and an executive officer after the executive allegedly caused an injury to her neck when he massaged it without her consent. The worker had a prior condition that affected her neck and shoulder. The executive officer had been known to be “physically demonstrative” and the human resources manager had spoken to him on more than one occasion, warning  him to not touch co-workers or customers except as necessary.

In this case, the Ontario Workplace Safety and Insurance Appeals Tribunal had to address whether the executive officer was acting in an employment-related capacity when he massaged the worker’s neck. The tribunal has previously addressed what types of conduct would be considered to be within the course of employment. When making these examinations, the conduct of the parties is considered, as well as conduct that may be condoned or accepted within the workplace in order to determine whether the actions in question were employment-related or incidental to the employment. In this case, the tribunal found the executive officer was not acting within the scope of his employment when he massaged the worker’s neck, nor was that conduct reasonably incidental to his employment. The tribunal came to the conclusion noting the conduct was not condoned by the company, given the executive officer had been warned a number of times about making unnecessary physical contact.

As a result, the tribunal determined the worker was barred from suing her employer but was able to sue the executive officer — and she did.

This case is an important reminder for executive officers of the need to protect themselves under workers’ compensation legislation. It is important executives know the bar against civil action is not absolute, and they must ensure their conduct remains professional and within accepted standards at all times.

This case illustrates how the actions of individuals or groups and accepted workplace practices can be called into question or scrutinized when an event or incident occurs, and the potential for exposure to civil action in case of an injury. Such conduct may take place either within the workplace or during work-related functions. All parties must operate within the boundaries of the workers’ compensation legislation in order to benefit from the protection it offers.

David Marchione is an occupational health and safety and workers’ compensation specialist with Compclaim, a consulting practice of Mathews, Dinsdale & Clark LLP in Toronto. He can be contacted at dmarchione@compclaim.com.

David Marchione

David Marchione is an occupational health and safety consultant and paralegal at Fasken in Toronto. He can be reached at (416) 868-3468 or dmarchione@fasken.com, or visit www.ehslaw.ca for more information.
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