0490-99-ES Greypoint Properties Inc., Applicant v. Nelson DaSilva and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 30012796
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Bill Hordelski for the applicant; Nelson DaSilva on his own behalf and Heidi Ann Lazar-Meyn for the Ministry of Labour.
DECISION OF THE BOARD; June 19, 2000
This is an employer appeal from an Order to Pay awarding termination pay, public holiday pay, vacation pay and unpaid wages to Nelson DaSilva, in the amount of $1,692.35. It is the position of the applicant, Greypoint Properties Inc., that Mr. DaSilva was an independent contractor, not an employee, and so the relationship is not governed by the Employment Standards Act.
On behalf of Greypoint, I heard evidence from Bill Hordelski, its property manager. Mr. Hordelski readily admitted that he had not been present when the relationship between Greypoint and Mr. DaSilva was established, nor did he have any details about what work Mr. DaSilva performed in the period from his start in July 1996 until September 1997. Mr. Hordelski has personal knowledge only with respect to the period between September 1997 and August 1998.
To recount events in a chronology, I will start with the evidence of Mr. DaSilva. Not only is much of the evidence unchallenged (because Mr. Hordelski had no knowledge), but Mr. DaSilva's evidence is supported by some Greypoint documents. Further, I found Mr. DaSilva to be a straightforward and credible witness. Mr. Hordelski was similarly straightforward and credible, but lacked knowledge about some of the events and arrangements.
Mr. DaSilva testified that in July 1996 he went to visit a friend who was working on a residential construction site in his neighborhood. He spoke to the site superintendent, Jerry Hefner, a principal of Greypoint, and was asked if he had any experience in construction and was looking for a job. Mr. DaSilva answered yes to both questions, then was asked if he had a hard hat and work boots. He went home and got them, and started that day.
Mr. DaSilva testified he was told he would be paid $9.00 an hour and would have to keep track of his hours. Once a week, a Greypoint representative came to the site, asked the workers how many hours they worked and wrote out cheques on the spot. Mr. DaSilva understood that he was responsible for making his own Income Tax remittances.
The construction involved the building of three townhomes and a duplex. I do not know precisely what Mr. DaSilva did, presumably labour of some kind. A record of the hours he worked prepared by Greypoint discloses that Mr. DaSilva worked an average of 32 hours a week on that project from July 1996 to August 1997. Mr. DaSilva said that he worked more or less full-time on that job, until the end of August when it was then available for tenants. Mr. Hordelski confirmed that the first tenants moved in around that time.
Mr. DaSilva provided no tools, or materials. He worked under the direction of Mr. Hefner, and showed up to work and left when directed to do so.
In the fall of 1997, Mr. DaSilva's work changed. Mr. Hordelski said that he was introduced to Mr. DaSilva by the landlords who comprise Greypoint, and told that Mr. DaSilva was handy and versatile. He began to provide maintenance and repair services on other properties under the Greypoint banner, with the direction of Mr. Hordelski, at the rate of $10.00 an hour. These properties consisted of rental houses, and small apartment and office buildings.
By this point, Mr. DaSilva was attending school in the mornings. Mr. Hordelski would call Mr. DaSilva with a list of things to be done, with tenants' names and addresses, and Mr. DaSilva would then start to work through the list, reporting to Mr. Hordelski when he was done. Mr. Hordelski would often drive Mr. DaSilva to the site to provide keys, or see the job for himself, or to arrange for materials. Mr. Hordelski often checked on the work when completed.
Mr. DaSilva provided his own hand tools and Greyoint provided all materials and larger tools. Tenants could not ask Mr. DaSilva to perform work, but one or another of the landlords often "intercepted" Mr. DaSilva on his rounds, and requested him to do something else, a matter over which Mr. Hordelski had no control. The tasks performed included landscaping, painting, drywall repair, setting tiles, plumbing repair, roof repair, laying sod and garbage clean up.
Greypoint's records show that between September 1997 and June 1998, Mr. DaSilva worked between 8 hours a week and 38 hours a week, with an average of 22 hours for the weeks he worked. Mr. DaSilva did not work every day; some days there was nothing for him to do. Mr. Hordelski prepared a form of invoice, and Mr. DaSilva filled it in. Mr. DaSilva invoiced for all hours worked on an hourly basis, providing the location of the work, its nature and listing any parts used. Mr. DaSilva was paid weekly on the basis of the invoices.
The relationship came to an end in the summer of 1998. Mr. DaSilva went on a planned vacation to Portugal, which was to last the whole summer. While away he had a discussion with Mr. Hordelski about why his most recent invoice had not been paid. Mr. Hordelski advised that it would not be paid because Mr. DaSilva had left some work incomplete, or so poorly done that it had to be done by others. Mr. Hordelski advised Mr. DaSilva that he was fired.
After Mr. DaSilva made a formal demand for unpaid wages (and a claim for other statutory minimums under the Employment Standards Act), Greypoint took the position that he was not entitled because he had invoiced for hours in excess of the time it should have taken to perform the work; had improperly used his father to assist him, without seeking permission; had consumed alcohol at the work site, about which he had been warned; and had partied in any empty unit. Mr. DaSilva denied any overcharging; admits that he drank wine, with his lunch but was never told it was a problem; denied the partying, and pointed out that his father had assisted him on other occasions, with the knowledge of the company.
Mr. Hordelski acknowledged that Mr. DaSilva's father had worked with his son on earlier jobs without complaint, but that lately "it had gotten out of hand". It is interesting to note that Mr. DaSilva prepared the invoices indicating his father's services, but the amounts were paid by Greypoint directly to his father.
It is the position of Greypoint that Mr. DaSilva was hired as an independent contractor and not an employee, and that those terms were made very clear to him. That may be so. But an employer cannot decide that a person is an independent contractor, any more than an employer and an employee can agree that the relationship is one of "independent contractor". Whether someone is an "employee" or an "independent contractor" is a legal conclusion, based on a determinations made from the factual circumstances, having regard to the purposes for which the question is being asked. In this case, I am required to determine if Mr. DaSilva was an employee or an independent contractor for the purposes of the Employment Standards Act, a question that has been determined on many occasions in a variety of work contexts.
The starting point is the definition of "employee and "employer" in the Act:
- In this Act,
"employee" includes a person who,
(a) performs any work for or supplies any services to an employer for wages,
(b) does homework for an employer, or
(c) receives any instruction or training in the activity, business, work, trade, occupation or profession of the employer,
and includes a person who was an employee;
"employer" includes,
(a) any owner, proprietor, manager, superintendent, overseer, receiver or trustee of any activity, business, work, trade, occupation, profession, project or undertaking who has control or direction of, or is directly or indirectly responsible for, the employment of a person therein, and
(b) any associated or related corporations, individuals, firms, syndicates or associations treated as one employer under section 12, where any one has control or direction of, or is directly or indirectly responsible for, the employment of a person therein,
and includes a person who was an employer.
- A useful summary of the "criteria" or "tests" that have been used in the past is found in 858532 Ontario Limited O/A Checker Limousine (April 7, 1995, ESC 95-73). After setting out the statutory definition of "employee" and "employer", the Referee wrote:
These definitions are expansive and have traditionally been interpreted in that fashion. Much has been written on the definition and I do not intend to cite it all again. Much has also been written about the various tests which should be used to construe the definition. Again, I do not intend to recite all of it. Suffice to say, that there is significant authority validating the use of each of the following three tests: the four-fold test (Montreal v. Montreal Locomotive Works Ltd. 11946 CanLII 353 (UK JCPC), 1947] 1 D.L.R. 161), the organization test (Mayer v. J. Conrad Lavigne Ltd. (1979), 27 ) O.R.(2d) 129), and the statutory purpose test (Majestic Maintenance Services Limited, E.S.C. 479A, February 8, 1977 (Burkett)).
The latter two tests, which have significantly 'enlarged' the four-fold test, have evolved for various reasons. The organization test arose in order to address certain perceived rigidities in the application of the criteria of control, ownership of tools, chance of profit, and risk of loss in the face of 'novel situations'. Under the newer test, the two main question asked are: 1) is the alleged employee an integral part of the company's business and organization or merely ancillary to it? and 2) "was his work subject to co-ordinational control as to 'where' and 'when' rather than the 'how'?" (Stevenson. Jordan & Harrison Ltd. V. MacDonald, [1952] 1 T.L.R. 101 at 111). …
I will review the facts of Mr. DaSilva's relationship with Greypoint having regard to those criteria. Turning to the first period, that is when he was involved in the construction of the town houses, the evidence established that he worked under the direct control of Greypoint's site superintendent on a full-time basis, provided no tools or materials, and was paid for each and every hour that he worked, at a rate determined by Greypoint, thereby incurring no "risk of loss". On the traditional "four fold test" Mr. DaSilva was an employee. At that time, Mr. DaSilva was also integral to the construction phase of the business and not providing an ancillary service. I conclude therefore, that while building the townhouses, Mr. DaSilva was an employee of Greypoint.
Did that relationship change when Mr. DaSilva commenced doing repair work? He still continued under a fair degree of supervision by Mr. Hordelski, who assigned the tasks and regularly attended the jobs to check the work. Mr. DaSilva provided some of the tools, but others and all materials were provided by Greypoint. Again, Mr. DaSilva was paid for all hours worked, at a rate decided by Greypoint, so there was no risk of loss.
In my view, Mr. DaSilva's work was still integral to the rental portion of Greypoint's business. Any landlord must make arrangements to have repairs and maintenance undertaken. And depending on the nature of that relationship, an employer/employee relationship may or may not exist. In this case, I am satisfied that Mr. DaSilva remained an employee of Greypoint, although on a more casual basis.
Mr. Hordelski sought to establish that Mr. DaSilva performed work for others in this period, so that, in effect, Mr. DaSilva was providing maintenance services to a variety of clients as one might expect of, for example, a plumber with a varied clientele. However, the evidence established that all the other work Mr. DaSilva performed (which was not much) arose out of his relationship with Greypoint. For example, Mr. DaSilva did other work for Greypoint landlords, but it was charged separately to the landlords. Mr. DaSilva also did work for an entity operated by Mr. Hefner's son. These arrangements are a far cry from the "true" independent contractor who is typically skilled, possesses tools of the trade and markets and operates a business. Mr. DaSilva is a handy young man, trying to support himself through school, who was prepared to do "odd jobs" for a low wage, in circumstances where he bore no risk of loss.
I conclude that throughout the period, Mr. DaSilva was an employee of Greypoint.
The only real dispute with respect to the quantum in the Order to Pay is Mr. Hordelski's contention that the last invoice should not be paid because Mr. DaSilva's work was of poor quality, and had to be finished or redone by others. As counsel for the Ministry argued, section 8 of the Act prohibits employers from claiming a set-off from wages, except as provided for in the Regulations. A set off for incomplete or poor quality work is not provided for in the Regulations.
DISPOSITION
- The application is dismissed. The Order to Pay is affirmed. The Director, Employment Standards is advised to pay out the monies held in trust, and any interest thereon, to Mr. DaSilva as soon as practicable.
“Mary Ellen Cummings”
for the Board