Employment & Labour Law

What Constitutes “Work” in Alberta?

February 7, 2024

two employees grooming dog representing doggy daycare workers doing work on their overnight shift

Disputes can easily arise in the intricate web of employment relationships, where employee rights and obligations intersect. However, a seemingly straightforward issue can be complicated when interpretation of a contract or statute is in dispute.

This blog post will explore the pivotal role that statutory interpretation can play in shaping the outcomes of certain conflicts. It will also analyze a recent decision from the Alberta Labour Relations Board, in which the crux of the dispute rested on determining what constituted “work.”

Pet Service Company Requires Employees to Work in Over Night Camps

In the case of 036910980661 Pet Services Inc. (Waggytails) v Spysznyk, the appellant business was a pet services company providing retail sales, grooming, crate-free boarding, training and daycare for dogs. The business was owned and operated by the same family for 12 years.

The crate-free boarding service provided by the company was particularly relevant to this matter and was called Over Night Camps (referred to as “ONC”). The parties agreed that ONC provided boarding services, and employees who had completed training in Daycare were then trained for ONC. The ONC area had a furnished apartment equipped with a full kitchen, bathroom, and two beds, and employees were paid $74.00 per night, with an additional $5.00 paid for every dog over five dogs. Employees were required to work one night per week in ONC but the company provided cash incentives for those who chose to work in ONC more. Employees could schedule their own ONC days and the “minimal” duties required on these shifts were expected to take no more than three hours of working time. These tasks included feeding the dogs, administering medication as needed, preparing invoices, cleaning, and taking the dogs outdoors.

Employees Not Permitted To Leave Premises During Over Night Camps

After acquiring the business, the employer consulted with Employment Standards regularly and was given consistent advice on the issues of pay and recording hours, which were based on the time the employee spent working. However, in this case, the hours the claimant employee claimed did not match the hours they actually worked. Based on advice from Employment Standards, the employer believed they were meeting, or even exceeding, the requirements under the Employment Standards Code.

When the matter came before the Alberta Labour Relations Board, it became evidence that employees were not permitted to leave the premises during ONC hours (11:00 pm to 5:45 am) as the business offered 24-hour daycare services. Employees normally slept during ONC time and although minimal work was carried out, employees were expected to respond if a disruption or emergency occurred.

Company Argues Time Spend At Over Night Camps Does Not Constitute “Work”

The company claimed that the time spent by employees on ONC does not qualify as “work” because time spent attending to animals and other duties was minimal and the employee was primarily sleeping during the shift. The company argued that other jurisdictions do not consider such time to be work and further, the owners were advised by a representative of Employment Standards that such time was not work. Therefore, wages were not paid.

Conversely, the employees argued that because they are required to remain on the premises during the shift, and they are expected to respond to any issue that arises during such time, that this is work.

Legislation to be Interpreted in “Broad and Generous Manner”

Noting that the issue in dispute involved statutory interpretation, the Alberta Labour Relations Board (the “Board”) based its decision on the relevant sections of the Employment Standards Code, paying specific attention to the definitions of “earnings”, “employee”, “wages”, and “work”. Referencing the modern statutory approach, the Board acknowledged that “the definition of work must be considered in its grammatical and ordinary sense, harmoniously with the scheme of the Code, the object of the Code, and the intention of the legislature.”

The Board also noted that the legislation “ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the [employees].” The Board also emphasized the importance of considering the goals and objectives of the law in determining the appropriate interpretation.

Company Ordered to Pay Employees for Work on Over Night Camps

The Board acknowledged that the employees could not leave the worksite during ONC as they needed to ensure the company’s contracted services would be delivered as promised. A key element of the business relied upon this 24-hour service with continuous availability. This was only made possible through the contributions of the employees. As such, the Board determined that the employees were indeed providing a service, and as such, their actions qualified as “work” under section 1(1)(aa) of the Employment Standards Code.

Although the company asserted that they were blameless because they had been relying upon specific advice provided by a representative for Employment Standards, the Board commended the company for its diligence, but nevertheless, noted that appeals under this procedure are de novo. As such, the Board was not bound by the underlying decisions made by an Employment Standards Officer or any other representative.

Ultimately, the company was ordered to be paid compensation for their additional hours as claimed in this appeal, amounting to several thousand dollars.

Contact the Labour and Employment Lawyers at DBB Law for Comprehensive Advice and Representation in Employment Disputes

The skilled team of labour and employment lawyers at DBB Law in Calgary provide tailored and trustworthy legal advice on a variety of employment-related matters, including proactive advice on employment contracts and workplace policies, as well as representation in disputes before the Labour Relations Board and courts, if necessary. To discuss your concerns with a member of our team, contact us online or by phone at 403-265-7777.

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