Was Door-to-Door Salesperson on Lunch Break Still Working for WSIB Purposes?
In a recent WSIB case, an interesting issue arose as to whether a commissioned door-to-door salesperson, who was hit by a car while crossing the street on his lunch break, was acting “in the course of his employment” within the meaning of the Ontario Workplace Safety and Insurance Act, 1997 (the WSIA).
The car that hit him was driven by a woman who worked as a Customer Service representative for a rental car company. The salesperson who sold hot water tanks and related energy-saving products, was just returning from an unscheduled, unpaid lunch break. He suffered injuries to his nose, a fractured pelvis, and what was termed “serious brain damage” resulting in memory loss.
Because of his injuries, the salesperson applied through the insurer for statutory accident benefits (SABs). He also sued the insurer, the driver, and the rental car company for civil damages.
The legal question arose as to whether at the time of the accident the salesperson could be considered a “worker” who was acting “in the course of employment.” Under the provisions of the WSIA, that determination would dictate the proper avenue through which the salesperson could pursue his various remedies.
After examining the facts, the WSIA Tribunal ruled that the salesperson was actually an independent contractor (not a worker), even though the company who paid his commission provided the needed corporate-branded sales materials, brochures, contracts, badges and hats that he used while going door-to-door. He typically set his own hours, worked as much or as little as he desired, and took breaks whenever and for as long as he wished. No one dictated his work hours or schedule, and he could “be his own boss.”
More importantly, the Tribunal found that the salesperson was not acting “in the course of employment” at the time of the accident. During the unpaid lunch break, he was not performing any activity that could be said to be in furtherance of his job duties, or even reasonably incidental to them. Although the lunch break may have occurred during what were generally his regular working hours, the accident took place on a public street and there was no one controlling or supervising him at that particular time. The risk he faced was not specifically employment-related, but was rather the same risk that any other member of the pedestrian public might face when crossing an intersection.
In the end, having been found to be an independent contractor acting outside the course of his employment, the salesperson was constrained to pursue his civil and WSIA-based remedies accordingly.