Mirella Quintieri v. Czeslawa Borowski and Ministry of Labour
4412-98-ES Mirella Quintieri, Applicant v. Czeslawa Borowski and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 41 007042
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Mirella Quintieri and Anthony Quintieri for the applicant; Czeslawa Borowski for the responding party; Heidi Ann Lazar-Meyn for the Ministry of Labour.
DECISION OF THE BOARD; April 25 2000
1This is an application pursuant to section 68 of the Employment Standards Act, (the “Act”) for a review of an Order to Pay #51376 made by an Employment Standards Officer.
2A hearing was held on Friday, April 14, 2000. The issue is whether Ms. Czeslawa Borowski was an independent contractor or an employee and thus entitled to benefits under the Act, including unpaid wages, premium pay for overtime and vacation pay.
3Ms. Borowski is a hair stylist. The hair salon involved is Hair Point Unisex Design (“Hair Point”) operated by Mrs. Quintieri. Her husband Mr. Anthony Quintieri does the bookkeeping for the salon.
4The Board heard direct evidence from both Mr. and Mrs. Quintieri and from Ms. Borowski. On the issue in question the evidence given by Mr. and Mrs. Quintieri is completely contradictory to the evidence given by Ms. Borowski.
5Mr. Quintieri testified that Ms. Borowski was never entered on the books of Hair Point as an employee and never issued a T-4 Slip. His understanding from his wife was that Ms. Borowski rented a chair for $100.00 a week and kept the fees that she collected from clients for herself. If the client paid by charge card or cheque the amount would be given in cash by Mrs. Quintieri to Ms. Borowski (less the administrative fee charged by the charge card company, approximately 2.75%). He testified that from his own observation Ms. Borowski made her own appointments, had her own appointment book and kept her own hours. He conceded that there was no written documentation regarding the status of Ms. Borowski. He testified that there were other hair stylists at Hair Point who were employees. These employees were paid weekly by cheque. He testified that he had never accounted for any payment of $100.00 made by Ms. Borowski for renting the chair. He further testified that at the beginning of the relationship with Ms. Borowski his wife had initially been busy and he had taken Ms. Borowski to a coffee shop. He denied that he had hired Ms. Borowski or discussed terms of employment. This was left to his wife, who had subsequently joined them at the coffee shop. He had then left, so he was not present when his wife and Ms. Borowski had agreed on their arrangements.
6Mrs. Quintieri testified that Ms. Borowski had come to her salon sometime, as she recollected, in November of 1997 to look for a job. She had been busy at the time and her husband had taken Ms. Borowski to a coffee shop. She had subsequently joined them and then her husband left. Ms. Quintieri testified that she liked what she saw in Ms. Borowski – that she had worked in a number of salons. She decided to hire Ms. Borowski and asked whether Ms. Borowski wanted to be a full-time or part-time employee. Ms. Borowski indicated she was presently located in Brampton, and this was a long way from the salon in Newmarket. In addition Ms. Borowski indicated she was having financial problems and thus could not come in all the time. Mrs. Quintieri then asked “how do you want to work this”? According to Mrs. Quintieri, Ms Borowski stated that “I want to rent a chair right now until I get on my feet”. Mrs. Quintieri said she felt sympathy for Ms. Borowski as she was a single divorced mother with three children. She indicated to Ms. Borowski that she could not keep her “on a chair for long because I don’t rent chairs. I usually hire stylists and put then on the payroll”. Mrs. Quintieri did however agree to rent Ms. Borowski a chair for $100.00 a week. At this meeting she asked Ms. Borowski to provide her social insurance number, birth date and address in anticipation of a time when Ms. Borowski would become an employee. This information was never provided.
7According to Mrs. Quintieri the arrangement lasted for the period of time Ms. Borowski was at the salon (she left towards the end of July 1998). During this period of time there were many calls to the salon from collection agencies seeking payment from Ms. Borowski. Ms. Quintieri testified that Ms. Borowski would keep the fees paid to her, and such amounts would not be rung through the till. If Ms. Borowski was paid by charge card, or by cheque made out to the salon, Mrs. Quintieri would immediately pay Ms. Borowski the amount in cash from the till (less the charge card fee). Mrs. Quintieri testified that rarely was the $100.00 weekly fee for the rental of the chair paid – but did admit that payment had been made on a few occasions (4 or 5). She admitted these payments had never been entered in the Company books. This money was put in the till. Mrs. Quintieri had let the fee for the rental of the chair slide as she felt sorry for Ms. Borowski and knew she was in financial difficulties. She had even loaned Ms. Borowski some money. She testified that Ms. Borowski was a good hair stylist.
8Mrs. Quintieri testified that she allowed Ms. Borowski to sell a product – Royal Body Care at the salon. This product was not related to hair products but completely separate from the hair salon business. Ms. Borowski did all the selling and kept all the payments. Neither Mrs. Quintieri or the other employees were in any way involved in the selling of Royal Body Care. Mrs. Quintieri testified she had no control over Ms. Borowski’s hours of work, her clients or her methods of operation. Ms. Borowski did supply her own tools (but is agreed that all hair dressers including employees supply their own tools), and used hair products supplied by the salon. Ms. Borowski made no payments for such products as Mrs. Quintieri felt such costs were covered by the rental fee of the chair.
9On the other hand, Ms. Borowski testified that she was an employee. She stated that Mr. Quintieri had hired her at the coffee shop sometime in the beginning of January 1998. She testified she wanted an employment relationship as she would have no clients in Newmarket and she needed a steady income. She testified that she was paid $300.00 a week. She was paid in cash by an envelope given to her at the end of the week. She testified that for Income Tax purposes she reported a salary of $300.00 a week. Ms. Borowski testified that she worked regularly scheduled hours from 9:00 a.m. to 7:00 p.m. and on Saturdays from 9:00 a.m. to 5:00 p.m. She vehemently denied that there was ever an arrangement to rent a chair for $100.00 a week and stated explicitly that she had never made any such payment. She testified that when she was paid by a client she always put the money, charge slip or cheque in the till, in the same manner as the other hair stylists. She admitted selling Royal Body Care Products and stated that payment for these products were always made in cash to her.
10As counsel for the Ministry submitted, if I prefer the evidence of the employer then, the employer should succeed as Ms. Borowski would, based on the case law, be considered as an independent contractor. If on the other hand, I prefer the evidence of Ms. Borowski, then this appeal application should be dismissed as clearly on her evidence, Ms. Borowski would be considered an employee. Counsel for the Ministry took no position as to which evidence I should prefer.
11In assessing the evidence I have considered all of the evidence and taken into account such factors as the demeanor of the witnesses, the clarity of their evidence, the witnesses’ apparent ability to recall events and to resist the tug of self interest in their responses to the questions, and what seems most reasonable and probable in all of the circumstances having regard to the evidence as a whole.
12It is troublesome that there is no documentation whatsoever to support either the position of the operator of the hair salon, or of Ms. Borowski. What is clear, however, is that whatever the arrangement was, it lasted for at least six months. It is also clear that no cheque was ever paid to Ms. Borowski as even according to her evidence all payments to her were in cash. There is no evidence of any statutory deductions ever being made from any of the amounts given to Ms. Borowski. Further it is agreed that Ms. Borowski did operate independently in regard to Royal Body Care products. There is no evidence to suggest that other hair stylists designated as employees were paid in cash and I accept the evidence given by Mr. Quintieri that such employees were paid by cheque.
13Having considered the evidence and the circumstances, I prefer the evidence given by Mr. and Mrs. Quintieri to the evidence given by Ms. Borowski. It just makes no sense from a business point of view that the employer would pay Ms. Borowski a salary in cash, without appropriate deductions. In the circumstances, it is more probable and reasonable that an arrangement to rent a chair was agreed to by Mrs. Quintieri and Ms. Borowski as testified to by Mrs. Quintieri.
14I therefore find that Ms. Borowski was an independent contractor.
DISPOSITION
15Accordingly the Board finds in favour of the applicant and sets aside Order to Pay #51376. The Board directs the Director of Employment Standards to reimburse the applicant the monies it holds in trust in relation to this matter.
“Timothy W. Sargeant”
for the Board