An Ontario retail employee who helped pursue a shoplifter, in violation of the employer’s workplace violence policy, was not entitled to Workplace Safety and Insurance Board (WSIB) benefits and could sue the employer and a supervisor in the courts for her injury.
The employee was standing outside the grocery store, where she worked, on her break. The supervisor, who had just finished his shift, followed a suspected shoplifter to his van. The employee also followed. The supervisor confronted the shoplifter who accelerated away and ran over the employee with both his front and rear driver-side wheels. The employee was hospitalized and had not yet returned to work.
The employee sued the employer and the supervisor seeking damages. The employer applied to the Workplace Safety and Insurance Appeals Tribunal for a declaration that the employee’s right to sue was taken away by the Workplace Safety and Insurance Act because she had WSIB coverage.
The WSIAT held that the employee’s injury did not arise out of and in the course of her employment. It was important that the employee, in participating in the confrontation of the shoplifter, had violated both the employer’s Non-Pursuit Policy and Workplace Violence Policy which prohibited most employees from pursuing shoplifters. Further, she was on a break at the time of the incident. Pursuing shoplifters was not one of her duties and was not even incidental to her duties. Her pursuit of the shoplifter was of no benefit to the employer because it violated company policy and made her unavailable to return to her regular duties. For similar reasons — plus the fact that he had finished his shift — the supervisor was found not to be in the course of his employment at the time of the accident.
As such, the employee was entitled to sue both the employer and the supervisor in the courts.
It is interesting to note that the employee’s own misconduct (violating the company’s non-pursuit policy) was one of the factors that took her “out of the course of” her employment and permitted her to sue the employer instead of claiming WSIB benefits.
Adrian Miedema is a partner in the Toronto Employment Group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts. For more information, visit www.dentons.com or www.occupationalhealthandsafetylaw.com.