In 2409433 Alberta Inc. o/a Papa Murphy’s v Manmeet Kaur, 2025 ABESAB 16, the Alberta Employment Standards Appeal Body found that a worker was an employee entitled to wages, not a volunteer.
It can be challenging to differentiate employee versus volunteer status. There are not frequently cases on this issue, so it is helpful as recent guidance from my perspective as a practitioner.
Facts
The following were some of the pertinent facts summarized by the Alberta Labour Relations Board, sitting as appeal body:
- The complainant worker Ms. Kaur worked for Papa Murphy’s pizza for some shifts in May and June, 2024
- The background was that the complainant did training for a few days. Papa Murphy’s stated that she had no experience, so this was a volunteer, trial period. The complainant acknowledged it was a trial period, but said she did not volunteer or agree to work for free
- She was not paid. She filed an employment standards complaint for unpaid wages, overtime pay and vacation pay and Employment Standards Officer awarded her just over $1,500 plus an Order of Officer fee of $154.45
- Papa Murphy’s pizza appealed the decision under Section 95(2)(b) of the Employment Standards Code [ESC]. The main basis of the appeal was that the worker was a volunteer and not entitled to wages.
Analysis / Conclusion
The ALRB noted that the ESC applies to “employees” and “employers”, and that Section 4 of the ESC states “an agreement that [the Code] or a provision of it does not apply… is against public policy and void.”
The ALRB started out by citing some guidance about the difference between a volunteer and an employee:
[19] […] whether the Respondent “agreed” not to be paid for her work is not the determinative question. In World Immigration Group (Wig) Corp. v Allado, 2021 CanLII 91839 (ABESAB) (“World Immigration Group”), the Appeal Body observed that distinguishing between volunteerism and employment can be difficult:
[120] Cases where an employer alleges individuals are volunteers may be nuanced and difficult. Obviously there can be cases where individuals are truly volunteering their time, and many charities and non-profit organizations depend on this. There may be cases when even true volunteers are paid some form of nominal honorarium. The law grapples with nuanced cases involving education programs and internships. All of this is to discern a distinction between “true volunteerism” and circumstances of disguised employment, where an employer seeks to take advantage of a person willing to engage in what is truly employment without the statutorily required payment. In those cases, the person’s “willingness” to do so runs contrary to section 4 of the Code, pursuant to which parties cannot agree to avoid the statutory minimums of the Code.
[20] Sections 1(1)(k) and (aa) of the Code define “employee” and “work” as follows:
(k) “employee” means an individual employed to do work who receives or is entitled to wages and includes a former employee, but does not include an individual who is a member of a class of individuals excluded by the regulations;
(aa) “work” includes providing a service;
The ALRB framed the question in this case as being whether the complainant was an “individual employed to do work”, which required an objective determination of whether she was truly a volunteer or whether this was a case of “disguised employment” intended to avoid the minimum requirements of the ESC. The ALRB para 52 of Cunningham v Hillview, 2015 ABQB 304 for the following overarching interpretive guidance respecting the ESC:
[…] the fundamental purpose of employment standards legislation is to protect the interests of employees…the legislation is to be interpreted in a broad and generous manner. Further, any ambiguities in the language used in the Code should be resolved in favour of the claimant/employee […]
The ALRB went on to provide some factual examples that can distinguish volunteers from employees:
[24] Although there is no definitive test as to what separates a volunteer from “an individual employed to do work”, the Appeal Body has previously held that the following evidence supports a finding that an individual is an employee as opposed to a true volunteer:
a. Text messages from the alleged employer telling the alleged employee to “come to work” […]
b. Text messages indicating control by the alleged employer over when the alleged employee should attend the workplace and when the alleged employee could leave or would be relieved by another person […]
c. Payments – beyond a small gift or honorarium – from the alleged employer to the alleged employee: Shresthaat para. 26; World Immigration Group at para. 124.
d. Evidence that the alleged employee performed work that was “part of the core, for-profit, business functions of the [alleged employer]”: World Immigration Groupat para. 123.
The ALRB highlighted the following pertinent facts:
- Papa Murphy’s is a for profit operation, making and selling pizza
- Papa Murphy’s is not a charity or ordinarily in the business of providing educational or training opportunities
- The facts were the another employee had resigned before the complainant started and they were trying to replace her
- The complainant was taught to make pizza, take orders and do customer service
- There were WhatsApp text exchanges between the complainant Papa Murphy’s where shifts were communicated
- The complainant had not been paid.
The ALRB found that this was not a case of volunteerism, but a case of “disguised employment”. The only fact potentially weighing towards volunteerism was the fact that the complainant had not been paid at all in the period she was at Papa Murphy’s, but this was not given much significance given the relatively sort period of the working engagement.
My Take
The result in this case is not surprising to me, but the argument raises some interesting questions.
The entrepreneurial side of me thinks its unfortunate that a person cannot volunteer for a short time in order to squeak into a job they otherwise would not be able to secure. However, my experience as an employment lawyer tells me that if that were legally allowed, the abuses by employers would far outweigh the potential benefit to employees.
In any event, this case should serve as a reminder to employers and employees that any agreement contrary to the minimum protections in the ESC is void.
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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.
