Richard Sovereign v. Michelle Joyce and Ministry of Labour, 2000 CanLII 12214

1665-99-ES Richard Sovereign, Applicant v. Michelle Joyce and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 43000354

BEFORE: Anthony Brown, Vice‑Chair.

APPEARANCES: Rick Sovereign and Barb Sovereign for the applicant; Michelle Joyce on her own behalf and Karima Chatur for the Ministry of Labour

DECISION OF THE BOARD; July 26, 2000

1This is an application pursuant to the Employment Standards Act (“the Act”) for review of an Order to Pay (No. 47600) made by an Employment Standards Officer. A hearing was held by the Board on June 21, 2000.

2The issues in this application are:

(1) Whether the claimant Michelle Joyce was an “employee” for the purposes of the Act?

(2) If Ms. Joyce was an employee, was her employment terminated by Mr. and Ms. Sovereign?

(3) If terminated, did the employer violate the Act, particularly section 44?

The Facts

3The facts are relatively straightforward. Michelle Joyce worked for Rick and Barb Sovereign as a baby-sitter for their two children. Ms. Joyce was initially employed for one year, from January, 1996 to January, 1997. Toward the end of the contract, Ms. Joyce gave Rick and Barb Sovereign notice that the contract was at an end. The notice stated as follows:

January 7, 1997

Barb & Rick Sovereign,

I, Michelle Joyce, choose to give my letter of notice to terminate my employment as soon as February 1/97, or as late as March 1/97, due to the completion of my contract.

Sincerely,

“M. Joyce”

4Ms. Joyce testified that in order to be fair to Mr. and Ms. Sovereign, she wanted to give them as much time as possible to find a replacement sitter. However, the Sovereigns were unable to find a sitter. In addition, Ms. Joyce’s own plans apparently did not go as expected and she found herself needing employment. The Sovereigns and Ms. Joyce thereupon entered into a new arrangement. This was committed to writing by Mr. Sovereign and states as follows:

Jan. 13/97

• Michelle to resign on Jan.31/97 (Letter already on file)

• Part-time arrangement from Feb.1 – Sept. 1 with option to continue

• Increase to $8.80 per hour to allow for Michelle to be self-employed

• Full days only with 3 or 4 per week. / Days can change each week

• Preference for no weekends

• 2 weeks notice of days required so Michelle can plan her time

• 1 week paid holiday up to Sept. 1 / Second week if option continued to Dec. 31/97

• Pay day each Friday ($8.80 x hours worked)

• Same responsibilities as the current arrangement.

“Rick & Barb”

5Both parties viewed this arrangement as being one of “self-employment” and stated that the pay rate of $8.80 per hour reflected that fact that no statutory deductions would be made from Ms. Joyce’s pay. At the time of the agreement, Ms. Joyce did not want to work full time and the Sovereigns therefore engaged other baby-sitters who could fill in on the days when Ms. Joyce did not work.

6Ms. Joyce started work under this new arrangement on February 1, 1997. Around the beginning of April, 1997, she discovered that she was pregnant. She informed the Sovereigns of her pregnancy. This was a high risk pregnancy. In addition, Ms. Joyce suffered from nausea.

7Barb Sovereign testified that, from the commencement of the aforementioned contract on February 1, 1997, she had observed several problems with Ms. Joyce’s job performance. Ms. Joyce did not seem as committed to the children as she had before, and there were relatively minor problems with her performance of laundry and grocery duties. Ms. Sovereign stated that she wanted to find out from Ms. Joyce what she would be capable of doing in view of her physical restrictions due to her pregnancy. The summer was coming up and she felt, for example, that the restrictions might reduce Ms. Joyce’s ability to do outdoor activities with her children.

8Therefore, on May 12, 1997, Barb Sovereign had a meeting with Michelle Joyce during which she reviewed the deficiencies in Ms. Joyce’s work and indicated that she needed to know what Ms. Joyce would be capable of doing over the coming months. Ms. Joyce stated that Ms. Sovereign indicated concerns about the children witnessing Ms. Joyce’s bouts of nausea and that Ms. Sovereign asked her to “put her best face forward” in front of the children. Ms. Sovereign admitted saying something to this effect. She testified that she was willing to accommodate the limitations caused by Ms. Joyce’s pregnancy by assigning duties that Ms. Joyce was physically capable of doing. Ms. Joyce stated that she told Ms. Sovereign that she would not know what duties she was capable of doing until she spoke with her obstetrician in a few weeks. She stated that Ms. Sovereign said she did not want to wait that long. Ms. Joyce testified that Ms. Sovereign also told her that she no longer felt comfortable having her as the children’s babysitter because she created an “unhealthy environment” in the home. Ms. Joyce took offence to this statement. She stated that she felt that she was being pressured to quit her job. Ms. Sovereign testified that she did not pressure Ms. Joyce to quit.

9Ms. Sovereign and Ms. Joyce spoke again by telephone on May 14, 1997, but were unable to resolve matters. Ms. Joyce stated that she asked Ms. Sovereign for a decision as to whether she was to stay on as a baby-sitter and Ms. Sovereign told her that the “ball was in her court”. Ms. Sovereign stated that after this conversation she asked her husband to call Ms. Joyce.

10On May 15, 1997, Rick Sovereign spoke with Ms. Joyce by telephone. In this conversation he characterized the dispute as an “emotional disagreement” and asked Ms. Joyce if she was coming back. Ms. Joyce testified that she told Mr. Sovereign that it was his decision whether she stayed on or not but she was not quitting. She explained to Mr. Sovereign that she could not come back to the household because Barb Sovereign had told her she was not comfortable having her in the house. She felt she had been dismissed. When it became apparent that Ms. Joyce would not be resuming her baby-sitting duties, Ms. Joyce and Mr. Sovereign made arrangements for the return of the house keys. Mr. Sovereign agreed to pay Ms. Joyce one week’s wages in addition to the “advance” she had received in April. Therefore, Mr. Sovereign wrote to Ms. Joyce as follows:

May 15/97

Michelle Joyce

Dear Michelle

As per our conversation on May 15, it was agreed that we would pay for one additional week (in addition to the advance last month) to serve as two weeks notice that your services are no longer required.

If you are interested in earning extra income in the future, we extend the opportunity to continue with us in a different role.

If this is not of interest, we wish you well in all of your future endeavours.

Thanks

Rick and Barb

Decision

Was there an employment relationship?

11The Board finds that there was an employment relationship between the employer (Mr. and Ms. Sovereign) and Ms. Joyce. Although the parties attempted to structure their contractual relationship so that Ms. Joyce was a “self-employed” independent contractor the facts reveal that Mr. and Ms. Sovereign directed virtually every significant aspect of Ms. Joyce’s duties and provided all necessary tools and equipment. Each week, the Sovereigns would let Ms. Joyce know their baby-sitting needs for the following week. Ms. Joyce had first crack at the available days. She worked on a regular basis, three or four days per week and her duties were essentially the same as during her previous employment with the Sovereigns. The absence of statutory deductions from the claimant’s pay cheque is a relevant factor but does not mean, by itself, that Ms. Joyce was self-employed.

Was the claimant’s employment terminated?

12The Board finds that Rick and Barbara Sovereign terminated Ms. Joyce’s employment.

13The Board finds that Ms. Sovereign did not enter into her conversation with Ms. Joyce on May 12, 1997, intending to terminate her. She was entitled to point out deficiencies in Ms. Joyce’s performance and to ask Ms. Joyce how her pregnancy might limit the duties that she was physically capable of carrying out. However, Ms. Sovereign left the impression with Ms. Joyce that she was not welcome to continue her job unless she could satisfy Ms. Sovereign that she could perform her duties despite the limitations caused by her pregnancy and consequent nausea. Ms. Sovereign’s call to Ms. Joyce on March 14, 1997 did not correct this impression.

14Mr. Sovereign attempted to salvage the situation by assuring Ms. Joyce that she was welcome to return and asking if she intended to do so. However, the working relationship between Ms. Joyce and Ms. Sovereign had deteriorated to the point where a simple phone call from Mr. Sovereign was not likely to resolve the situation. In my view, there was an onus on Mr. and Ms. Sovereign to go much further to correct the impression left by Ms. Sovereign.

15In Rock Glen Fruit Farms Limited (February 6, 1992 ESB # 090811), Referee R. J. Roberts considered the elements that indicate whether a person has “quit” employment, and stated:

For an alleged quit to be effective, an employee must express in words or action an intention to quit and then clearly and unequivocally act upon this intention. If there is any uncertainty as to either of these elements, it is the responsibility of the employer to clear it up.

16In my view, Ms. Joyce did not quit her job. Ms. Joyce would have stayed in her position at least until September, 1997 had the dispute not occurred. Whatever Mr. Sovereign said on May 15th did not assure Ms. Joyce that she was welcome back. The Board’s finding that there was a “termination” is supported by the use of the phrase “notice that your services are no longer required” in Mr. Sovereign’s letter to Ms. Joyce dated May 15, 1997 (reproduced above). This phrase, and the payment of an extra week’s wages, are more consistent with an intention of the employer to terminate than with the employee’s intention to quit.

Did the employer violate the Employment Standards Act?

17Section 44 of the Act states:

44. An employer shall not intimidate, discipline, suspend, lay off, dismiss or impose a penalty on an employee because the employee is or will become eligible to take, intends to take or takes pregnancy leave or parental leave.

18At the time of her termination, Ms. Joyce qualified as a person who was protected by this provision. Generally speaking, there is a heavy onus on an employer to show that its termination of an employee who is or will become eligible to take a pregnancy leave was for reasons unrelated to the pregnancy. (See, for e.g., York Condominium Corporation 506, Board File 1704-98-ES, unreported decision of the Board dated October 28, 1999.)

19Although Ms. Sovereign and Ms. Joyce obviously have different interpretations, they do agree that on May 12, 1997, they discussed Ms. Joyce’s ability to do her job (or certain aspects of it) while pregnant. Simply put, Ms. Sovereign had concerns about Ms. Joyce’s ability to perform her job because of her pregnancy. There were other concerns about her job performance, but the employer did not argue that these were cause for termination. I find therefore that the termination was directly connected to the fact of Ms. Joyce’s pregnancy. The reason for the termination was related to the performance of her work and that performance was materially affected by her pregnancy. The evidence is sufficient to establish a violation of section 44. There are no facts before the Board that show any reason to amend the amount of compensation ordered by the officer.

Disposition

20The application is dismissed.

21The Director of Employment Standards is directed to pay the following amounts from the money held in trust in this matter:

To the claimant, Michelle Joyce $5,029.00

To the Government of Ontario

Consolidated Revenue Fund $ 502.90

Interest accrued on the above amount while held in trust shall be

paid to the recipients, pro rata.

“Anthony Brown”

for the Board