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The Nova Scotia Court of Appeal upheld a tribunal’s finding that an employee who slipped and fell in a washroom at work while performing a religious cleansing is not entitled to workers’ compensation.
 
The cleaning employee left “course of employment” said the Court of Appeal. The tribunal found, and the appeals court agreed, that the employee stepped out of the course of employment when he went to the lavatory to perform the cleansing ritual.
 
A labor and employment lawyer, Alex Warshick, sait the appeals court looked at the purpose of what the employee was doing and it wasn’t for any work-related purpose.  There weren’t any connections to work functions.  Thus, the worker was found to have stepped out of the course of employment.

The employee was employed as a cleaner for GDI services, a Montreal-based commercial cleaning company at a facility in Dartmouth, Nova Scotia.  On August 17th 2020, the employee clocked in for his shift and before he started working, he went to a small private washroom to perform a religious cleansing ritual.  Wudu, as the ritual is called, involves pouring water over parts of the body, which includes the feet.

After the employee completed the ritual, he slipped while still in the lavatory.  He fell on the floor while putting his socks back on and injured his back.

He filed a workers’ comp claim.  But GDI submitted an accident report to the Nova Scotia Workers’ Compensation Board (WCB) along with a letter contesting the claim.  

The tribunal made note that an injury that occurs in incidental actions like coffee breaks could be found to be in the course of employment, but it would only be found to have arisen out of employment if there was a causal connection that was more than “trivial”.  In this case, the cleansing ritual was completely separate from his employment actions.

The employee went to the Nova Scotia Court of Appeal.  His argument was the Tribunal erred in finding his activity was not incidental to his employment or arose out of an in the course of employment.

The court pointed to the Nova Scotia Workers’ Compensation Act, which says that where the accident arose out of employment, unless shown to the contrary, it shall be assumed it occurred in the course of employment, unless the contrary is shown, it shall be assumed it arose out of the employment.

The WCB also has a policy to assess entitlement to workers’ compensation under the act.  The policy describes “arising out of the employment” as meaning an injury or accident has to be caused by some risk which is related to the employment, either directly or indirectly.

The court said this is concerned with the origin of the cause of the injury.

The court also pointed out “in the course of employment” deals with the time, place, and circumstances of the accident, and the WCB’s policy agrees a compensable injury has to occur at a time consistent with when an employee is typically working, in a place where the employee does his/her work, and while performing an action directly or fortuitously by chance related to the employment.

The court found there was significant evidence the workers’ injury did not arise out of his employment.  The tribunal properly followed the law that there must be a link between the worker’s injury and the risk created by the employment.

The labor and employment lawyer, Alex Warshick, expressed there wasn’t a clear causal link between risk inherent in the employment and the accident leading to the injury.  Any member of the public going to the lavatory at this specific place and performing the ritual r just washing up would have had the same risk of injury.  There’s nothing about the specific job that contributed to the specific injury.
 
The appeal was dismissed.  

The labor attorney pointed out there have been other cases in Nova Scotia in work place lavatories where there was no connection to the course of employment so the injury was not compensable.  However, Alex Warshick added the circumstances can change and bring a worker back into the course of employment.

For example, if an employee drives to and from the cleaners during a break to pick up his uniform required for his job, that moves an action into the course of employment where it would not have been if he were just picking up his own personal shirts.  The uniform moves the action into the course of employment because it’s at the instruction of the employer and the employer has an element of control.

Another question was the issue of accommodation.  There were some conversations between employer and employee but nothing amounting to an accommodation.  If there had been accommodation, it might have changed the extent of control and direction this employer had given for the activity in their workplace, and that might have brought it into the course of employment.

The labor attorney advised that much of what’s personal and what’s work related became difficult to separate in work places that are increasingly flexible.  It could be childcare activities, religious activities, running errands…  It’s where the personal and work related stop and start, and overlap that will influence future decisions; flexible work arrangements that allow an employee to do something personal and then come back to the job will more and more create discussion, differing opinions, debate, and conflict.  

lonce@adjustercom.com