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. The Act protects you if you are exercising your rights.
There are times when you or the employer may not agree 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 any amount found to be owing. TheBoard’s decision is final and binding on both parties.
To get a better picture of who is considered as an employer, following case would help.
North Park Dental Centre v. Lisa Allen (31 January 2000), 4145-98-ES (Gee)
The employer claimed that the claimant was an independent contractor. This case also deals with the entitlement to maternity leave under the Act but we will only deal with the issue of whether she was an employee or an independent contractor.
The refereeagreed with the officer’s finding that the claimant was an employee. He cited the definition of employee and employer in the Act, which clearly show the claimant to be an employee.
The claimant worked as a dental hygienist for two days/week, and was initially paid $35.00/hour but it was later increased to $37.50/hour. She did not invoice for her services or collect GST. The employer made no deductions for taxes, CPP or EI. She declared herself as self-employed for tax purposed. She also worked two days per week for another dentist.
The claimant’s duties included scaling teeth, oral hygiene, taking x-rays, fluoride application and dental charting. The office scheduled her patients and her pay was not dependent on the number of patients she treated. She also performed some office duties and attended staff meetings. The office was responsible for collecting payments from the patients. Her pay was not affected if payment was not collected from the patient. The dentist determined the patient treatment plan. She could not hire an assistant or send a replacement.
The dentist owned all of the dental equipment used by the claimant except for roughly two sets of scaling instruments. The dental office supplied all the disposable materials. .
Prior to claimant going on maternity leave, the dental office offered to put her on payroll but she declined. The dentist and the claimant discussed about returning back to work after the leave. They also agreed to have the claimant work four days/week.
During her maternity leave, the dental office hired a new dental hygienist at a lower hourly rate. The claimant was offered an hourly rate of $28.00/hour on her return from maternity leave instead of $37.50 that she was getting before. She was told to accept it or leave it and that her responsibilities would remain the same which she declined and was dismissed.
The Act defines the employer as someone who has “control or direction of” or be “directly or indirectly responsible for” the employment of the alleged employee.
This leads to the consideration of fourfold test established at common law for determining whether a person is an employee or independent contractor. Applying the test (1) who has the control; (2) who has ownership of the tools; (3) chance of profit: (4) risk of loss. In addition, it is also considered whether the individual was an integral part of the organization.
Obviously, the dental office had full control of claimant’s activity, that is, it scheduled the appointments and collected the money from the patient. She received full pay even when the patient did not pay. She used employer’s office and its supplies to conduct her work, that is, the tools used by her were that of the dental office. She invested no money and thus had no chance of profit or risk of loss. Her pay did not depend upon the patients she treated. She was also considered as an essential part of the dental office.
The claimant was considered to be an employee based on all these consideration. The fact she declared herself as self-employed had no bearing on her status as an employee.
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 [email protected]
If you don’t have access to e-mail; you can fax your question at (905) 331-1805.
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