2553-00-ES 1306305 Ontario Inc. o/a Speedex Communications & Speedex Transfer & Cartage, Applicant v. Ranu Express, and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 40011994
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Terry Remedios for the applicant; Ranjit Singh Kharod for Ranu Express; Laurie Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; May 18, 2001
This is an application pursuant to section 68 of the Employment Standards Act ("the Act") which came on for hearing on April 25, 2001, at which the following oral decision was made:
I have considered the best case facts and representations by the applicant ("Speedex").
I do not need to hear from the responding parties.
The Employment Standards Act applies to employees in Ontario, including provincially regulated truck drivers.
In this case, the applicant argues that Mr. Kharod was not an employee but was employed by Ranu Express, which is a trucking agency. Accordingly, Ranu Express is responsible to Mr. Kharod and the only relationship Speedex has with Mr. Kharod is in his capacity as an employee of Ranu Express.
In these cases, the Board must determine the true nature of the relationship between the parties. The fact that there is documentation which states that Mr. Kharod is an employee of Ranu Express and not Speedex is a factor in determining the nature of the relationship, but it does not decide the whole issue.
In determining the true nature of the relationship, in addition to the documentation, the Board looks at who has control in the relationship, who owns the tools, etc.
In this case, there is no evidence before me other than that Ranu Express had no other drivers other than Mr. Kharod. Ranu's only client was Speedex and Mr. Kharod worked full time (45-65 hours per week) for Speedex.
While in trucking it is not unusual for drivers to be independent contractors, in those cases the driver invariably owns his own truck. In this case, Mr. Kharod drove a truck – a Speedex truck – supplied by Speedex.
Looking at all the factors, I am satisfied that the real relationship here was that Mr. Kharod was an employee of Speedex in fact. It is likely that Ranu Express was established at the insistence of Speedex as a sham to cause it to avoid its employment obligations to Mr. Kharod.
I find therefore that Mr. Kharod was an employee of Speedex for the purposes of the Act.
That leaves the set-off issue. Section 8 of the Act states:
Except as permitted by the regulations, no employer shall claim a set-off against wages, make a claim against wages for liquidated or unliquidated damages or retain, cause to be returned to the employer, or accept, directly or indirectly, any wages payable to an employee.
Section 14 of Regulation 325 sets out the circumstances where an employer may withhold wages and states:
- (1) Despite section 8 of the Act, an employer may set off against, deduct from, claim or make a claim against or retain or accept the wages of an employee where,
(a) a statute so provides;
(b) an order or judgement of a court so requires, or
(c) subject to subsection (2), a written authorization of the employee so permits or directs.
(2) No written authorization of an employee shall entitle an employer to set off against, deduct from, retain, claim or accept wages for faulty workmanship, or for cash shortages or loss of property of the employer where a person other than the employee has access to the cash or property.
(3) Where an employee has been given or paid a vacation with pay or payment for vacation in excess of the requirements of Part VIII of the Act, no employer shall set off or deduct such excess against or from any vacation with pay, pay for vacation, or payment under section 30 of the Act.
In this case, there was no statute that required the withholding of the wages, there was no court order and there was no written authorization by the employee, or for that matter, Ranu Express.
Accordingly, the employer was not permitted to withhold the cheque as it did.
I therefore confirm the Order to Pay.
DISPOSITION
- The Board hereby directs that the Director pay the monies held by it as wages to Ranjit Singh Karod, and the administration fee thereon to the Government of Ontario Consolidated Revenue Fund.
"Brian McLean"
for the Board