While writing this blog I was listening to CBC’s Cross Canada Checkup and Rex Murphy’s discussion Are unpaid internships a good way to get a start in the job market?
There was quite a divide among those who called in to the show about the pros and cons of such arrangements. Recently, the Nova Scotia Labour Standards Board (the “Board”) weighed in on the topic. In what has been called the first decision on the topic, the Board held that a continuing care assistant (“CCA”) who held an unpaid mentorship position through a training program was not an “employee”, and therefore not covered by the protections of the Labour Standards Code (the “Code”).
The case, Smetana and Ocean View Manor Society, involved a complainant, Kelly-Ann Smetana (“Ms. Smetana”), and the respondent, Ocean View Manor Society (“Ocean View”). Ms. Smetana was in the process of completing a CCA training program through FutureWorx (a not for profit training organization). As part of that program she was required to complete a number of mentorship hours. Ms. Smetana took some of her mentorship placement at Ocean View. She also worked casual hours at Ocean View, but those casual hours were not counted toward her mentorship hours.
The mentorship came to an end before its completion. There was a disagreement as to why it came to an end. Ms. Smetana claimed that Ocean View terminated the mentorship when she said she should be paid for the hours she was working. Ocean View said that the mentorship came to an end because there were issues between the mentor and Ms. Smetana.
Ms. Smetana filed a Labour Standards Code complaint. She said that she was not receiving the benefit of the mentorship program and had performed the same work she would as a casual without pay and therefore she should be paid.
The Board disagreed. The Board held that, in practical terms, a person can agree to “work” without pay in a number of circumstances, including as a volunteer, in a mentorship or in a practicum arrangement. The Board found that the nature of such a relationship will depend on how it is defined by the parties.
In this case, there was no dispute that normally Ms. Smetana’s mentorship program would be unpaid. There was a complicating factor in that she was originally hired as a casual employee, but the mentorship hours nevertheless remained distinct. The hours were a requirement for the completion of the program through FutureWorx. Further, Ocean View gave evidence that the work by Ms. Smetana was “surplus” and part of the educational program.
The Board held that Ms. Smetana was not an “employee” while performing tasks in the mentorship program and therefore was not subject to the Code.
What’s the takeaway?
This case is important as it is one of the first decisions in Nova Scotia (if not the first) to consider the status of people performing duties mentorship/internship programs in Nova Scotia. The decision confirms that unpaid mentorship/internship programs through training or educational institutions can be valid and not a violation of the Code. However, businesses engaged in such programs should be very clear what the mentorship/internship entails and should clearly set out in writing that the position is unpaid.