A retail employee who helped pursue a shoplifter, in
violation of the employer's workplace violence policy, was not
entitled to 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
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 Workplace Safety and Insurance Board 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.
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