Definition of Employee

If you work in the province of Ontario and the company falls under its jurisdiction, you may be covered under the Employment Standards Act, 2000. The Act sets minimum standards that an employer must comply with. If the employer fails to do so, you can file a claim on line without cost with the Ministry of Labour against the company. If you do not wish to disclose your name to the employer, you can make such a request to the Ministry. Some standards are so unique that they cannot be investigated without identifying you. The Act protects you if you are exercising your rights.
 
There are times when you or the employer may disagree with the officer’s decision, if so, both parties have a right to appeal the officer’s decision to Ontario Labour Relations Board within 30 days. It does not cost the employee to request an appeal but the employer may be required to pay the Ministry any amount found to be owing to the employee. This amount remains with the Ministry till the final decision of the Board. The Ministry then distributes the money in accordance with the Board’s decision. There is no further appeal allowed. The Board’s decision is final and binding on both parties.
 
To get a better picture of who is considered as an employee, following case would help. This case was referred to the Board for decision:       
 
Girex Bancorp Inc. v. Hseih (2 January 2004), 0047-03-ES (Wacyk)
 
The employer claimed that the claimants were voluntary trainees and not employees of the company.
 
The company was engaged in e-commerce and hired employees to conduct its business. When it found out the employees were unable to do the job assigned, it offered “training opportunities” to students in the final stage of an educational program. The employer’s intention was to provide students with training for three months and then hire them as employees when financing became available.
 
The financing, however, did not materialise and the company then offered to retain the students as independent contractors. The students subsequently filed claims against the company for unpaid wages.
 
The Board agreed with the officer’s decision that the students were employees of the company and not independent contractors as the employer claimed. The Act defines a person receiving training as an employee “if the skill in which the individual is being trained is a skill used by the person’s employer, unless all of the conditions are met” (section 1(2) of the Act lists six conditions).
 
The evidence showed the following four conditions were not met:
 
1.                  The training is similar to that which is given in a vocational school.
 
The Board found there was no evidence of formal instruction, supervision or evaluation and that the training could not be characterized as similar to that of a vocational school.
 
2.                 The training is for the benefit of the individual.
 
The Board did not agree with the employer’s claim that the training provided to the students enhanced their employability but instead found that the only benefit they received of their labour was a reference letter of “dubious value”.
 
3.                 The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.
 
The Board determined that the benefit of the training was mainly to the employer as it was engaged in that business.
 
4.                 The individual does not displace employees of the person providing the training.
 
The Board found that there was no difference between the work these students did and the work that was done by the employer’s previously paid employees. It was only when the money ran out, the company turned to these students to complete the work.
 
5.                The individual is not accorded a right to become an employee of the person providing the training.
 
6.               The individual is advised that he or she will receive no remuneration for the time that he or she spends in training                  
 
The Board took the position that it was up to the employer to show that all six conditions were met and it failed to do so. Although, the Board took no position regarding conditions 5 and 6, it appears that the condition 5 too was not satisfied as the individuals were promised jobs after the training. 
 
This information is only provided to guide you about your entitlements under the Employment Standards Act, 2000 and should not be considered as a legal advice.

This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at esaconsulting@hotmail.com if you don’t have access to e-mail; you can fax your question at (905) 331-1805.

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