Construction Worker Or Not?  Employment Standards Case

In Sub-Terrain Excavating & Trucking Ltd. operating as Sub Terrain Excavating v Ross, 2025 ABESAB 1, the Alberta Labour Relations Board found a truck driver was not employed in construction, so he was entitled to statutory termination pay.

This case is important because it illustrates some common disputes around employee classification in the workplace, and the potential effects of misclassification.

Facts

The following were some of the pertinent facts summarized by the Alberta Labour Relations Board:

• The employer Sub Terrain Excavating is an agricultural construction company
• Agricultural construction is seasonal work
• The complainant Skyler Ross worked for the employer as a truck driver, hauling sand to golf courses in Alberta and BC and hauling materials to construction sites
• The employer internally classifies all its field employees as construction employees regardless of what they do. It argued this was advantageous to employees to keep them employed year round in an otherwise seasonal job and to earn more overtime
• The employees driving truck would sometimes operate heavy equipment as well, but this employee only drove trucks in the short time he worked for the employer
• The employee gave 3 weeks’ notice of resignation to work elsewhere over the winter
• The employer cut that resignation period off and terminated his employment immediately. The employer’s position was that since he was a construction worker, he was not entitled to statutory termination pay under the Employment Standards Code
• The employee made an Employment Standards complaint and was awarded termination pay
• The summarized decision is the employer’s appeal decision

Analysis / Conclusion

The ALRB noted that the main sections of the Employment Standard Code at issue were those related to resignation and termination notice for ordinary employees (Section 55, 56 and 57), and the main section of the Employment Standards Regulation was the one providing an exception for statutory termination notice of a construction employee:

5(1)  No termination notice is required to be given by an employee, and no termination notice, termination pay or combination of termination notice and termination pay is required to be given or paid by an employer to terminate the employment of an employee if

(a)   the employee is employed at the site of and in the construction, erection, repair, remodelling, alteration, painting, interior decoration or demolition of any

(i) building or structure,

(ii) road, highway, railway or airfield,

(iii)sidewalk, curb or gutter,

(iv) pipeline,

(v) irrigation or drainage system,

(vi) earth and rock fill dam,

(vii) sewage system,

(viii) power transmission line or power distribution system, or

(ix) gas distribution system unless the employee

(x) is employed to perform ongoing maintenance, or

(xi) is employed as an office employee;

The ALRB had little difficulty concluding in this case that the complainant was not working in “construction” as that term is used in the ESC Regulation:

[14] Factually, the Respondent’s work does not meet the definition of the Regulation, as set out above.  He was employed solely driving a truck, either delivering sand to golf courses or materials to a construction site.  Delivering materials to a construction site is not construction.  To meet the definition of construction, an employee must be present on the site and engaged in one or more of the listed activities.  As the Respondent does not meet the definition of construction, the exemption from providing termination notice contained in section 5 of the Regulations does not apply.  […]

The ALRB went on to consider the employer’s argument that it internally classified its truck driving employees as “construction” employees in part because they would get more overtime pay under Employment Standards and would be classified more advantageously for year round employment.  The ALRB did not find this to be a persuasive argument, noting that providing more than minimum standards on some items does not allow an employer to provide less than minimum standards on others.

The ALRB found in the end that the employee was not employed in construction, so he was entitled to statutory termination pay.

My Take

It is very common for employers to misclassify employees.  It happens sometimes in cases where employers claim their employees are in “construction” or “management” or “supervisory” roles.  It also happens often in cases where employers claim their workers are “contractors” – sometimes this claim is true, but sometimes Courts find the workers are employees.

This case should just serve as a reminder that Courts and Tribunals are looking for the substance of the relationship.  The internal label may help an employer in some cases, but if the substance of the relationship is different than the label, that is what will generally prevail in a lawsuit.

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Bow River Law is a team of knowledgeable, skilled and experienced employment lawyers handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.