3892-00-ES E.J. Robertson, Mykola (Mike) Moros, Applicants v. ServiceMaster Toronto West, and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 33001711

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: E.J. Robertson for the applicants; David Crowe and Ronald G. Trotter for ServiceMaster Toronto West; Karen Northey for the Ministry of Labour.

DECISION OF THE BOARD; December 6, 2001

1This is an application pursuant to the Employment Standards Act (“the Act”) for review of a refusal by an Employment Standards Officer to make an Order to Pay.

2The applicant Edward Robertson claims unpaid wages in the amount of $14,187.50, plus various expenses. The wages are for 18½ weeks of employment from September 19, 1999 to February 12, 2000 at $875.00 per week for a total of $16,187.50, less $2,000.00 he claims he has already been paid on account of wages.

3The Employment Standards Officer determined that the applicant Robertson was not an employee of the responding party company and that the applicant therefore had no entitlement to wages under the Act.

4This application was heard on November 27, 2001.

5The applicant Robertson testified that he responded to a newspaper advertisement for a “Manager” to run a Toronto lawn care franchise. He initially met David Crowe, the principal and owner of the responding party company, on September 19, 1999. They met subsequently on September 21, 1999, at which time Mr. Crowe hired him. He was to find a location, contact suppliers, organize marketing, and perform other tasks associated with the organization of the franchise, drawing upon his background in the field. He showed Mr. Crowe binders of photographs reflecting his involvement with other lawn care enterprises, such as Chemlawn.

6On September 24, 1999, he attended a meeting with Mr. Crowe and three other persons associated with Mr. Crowe in respect of the franchise. He claims he was told that his salary would be $50,000.00 and that this was later reduced to $45,500.00 per year. He attended another meeting on October 29, 1999 in Mississauga with Mr. Crowe’s associates, at which time he was provided with information about the projected budget for the franchise, and about ServiceMaster policies in general. He stated that he had about a dozen meetings with Mr. Crowe or his associates, in total.

7The applicant testified that upon being hired he went about setting up the franchise by making contacts with suppliers, marketers, real estate companies, telephone companies, etc. He hired Mike Moros, a computer expert, to work on improving the design of ServiceMaster software. He stated that he was in frequent contact with Mr. Crowe during the period of alleged employment. He testified that he worked from 6:30 or 7:00 a.m. to 5:00 or 6:00 p.m. each workday, working out of his home office.

8The applicant agrees that there is no written contract between himself and the responding party. He was unable to produce copies of any correspondence, such as an offer of employment, which would indicate an intention to enter into any form of employment agreement. He agrees that he never completed an application form, or any tax forms required by the Customs and Revenue Agency. He did not produce a copy of the resumé that he claims he gave Mr. Crowe. He never received a T-4 slip. He never received a paycheque from the responding party, although he was given two cheques for $1,000.00 each, against Mr. Crowe’s personal bank account. He stated that the cheques were made out to his proprietorship “N.E.R. Enterprises” on the advice of his tax accountant who was to decide what deductions were necessary. He explained that he was not concerned about not receiving regular paycheques because the franchise was backed by the ServiceMaster company.

9The applicant stated that during the period of employment, he used his own telephone and premises. He was unable to produce any receipts for expenses allegedly incurred on behalf of the responding party. He stated that he did not receive direction from the alleged employer as to what to do on a daily basis. He was not given a work schedule. He was in charge of getting the franchise up and running. He stated that when the employment relationship ended, he did not return any files to the responding party, because he had not been paid.

10Mr. Crowe testified on behalf of the responding party company. He agreed that his prior endeavours with respect to the franchise had encountered financial difficulties due to the dealings of an individual who left the enterprise with a mountain of debt. Mr. Crowe placed an advertisement for a manager to assist in re-establishing the franchise as a viable operation. He agrees that he met with Mr. Robertson on September 21, 1999 at the Prince Hotel to discuss the job. They also met on a few subsequent occasions.

11Mr. Crowe denied that there was any employment contract between the applicant and the responding party. He stated that no decision would have been made by him or his business associates to hire the applicant until the applicant had formally applied for a position, provided a resumé and references, and had been vetted with ServiceMaster Canada. He explained that the two cheques (dated November 26 and December 15, 1999) to Mr. Robertson’s proprietorship were written to cover expenses claimed by Mr. Robertson, although no receipts were forthcoming. He claims that Mr. Robertson demanded this money in a manner that was threatening and he wrote the cheques under duress. A notation on each of the cheques states that they were for expenses with receipts to follow.

12Mr. Moros is also a claimant for unpaid wages in this application. He did not appear to give evidence on his own behalf. Mr. Crowe denied ever having met or spoken with him prior to the meeting in this matter with the Employment Standards Officer. Mr. Robertson stated that he hired Mr. Moros on behalf of the responding party to improve the ServiceMaster software. However, Mr. Crowe stated that Servicemaster software is controlled by that company and is not changed by franchise holders, in any event. There is no written order from the Employment Standards Officer pertaining to Mr. Moros.

Decision

13The claim by Mr. Moros is dismissed. There is no evidence before the Board showing an employment relationship between him and the responding party. Mr. Moros has the onus of adducing evidence to support his claim. He did not appear at the hearing. Nothing stated by Mr. Robertson in respect of Mr. Moros goes to prove that Mr. Moros was hired by the responding party company. I accept the evidence of Mr. Crowe that he had no knowledge of the hiring of Mr. Moros by Mr. Robertson and that he would have no interest in having the software redesigned by Mr. Moros.

14The claim by Mr. Robertson is also dismissed. The factors militating against a finding that there was an employment relationship are overwhelming. Mr. Crowe struck the Board as being a person with some business acumen and experience. It is less than credible that he would hire Mr. Robertson on the spot on either September 19 or September 21, 1999 as asserted by the applicant. The success of the franchise would depend largely upon the expertise of the manager and it is likely that Mr. Crowe would take care during the hiring process. Moreover, there was no written application or offer of employment. No paycheques were ever issued to Mr. Robertson. No tax forms were completed, nor statutory deductions made. Indeed, the two cheques for $1,000.00 were made payable to Mr. Robertson’s business so that his own tax accountant could allegedly look after the deductions. The responding party did not direct the applicant’s work or provide him with premises or equipment. He was not required to log his hours or activities.

15I accept Mr. Crowe’s evidence that he might have hired Mr. Robertson after all of the paperwork had been completed and after his associates were consulted. In that sense, Mr. Robertson was a prospective, not actual, hire. Clearly, the invitation to Mr. Robertson to a meeting in Mississauga to discuss the year 2000 budget on October 29, 1999, indicated that he had some involvement with the responding party, but that involvement cannot be characterized as an employment relationship. Mr. Robertson appears to have made an initial foray into assisting the responding party with respect to certain things, such as marketing, necessary to establish the franchise (although it is highly unlikely that his activities would have consumed anywhere near the hours claimed). In my view, if Mr. Robertson was performing services for the responding party, it was not as an employee. There is insufficient evidence before the Board to show the existence of an express or implied employment agreement. Mr. Robertson is not entitled to wages under the Act.

DISPOSITION

16The Officer’s refusal to make an Order to Pay is affirmed. The application is dismissed.

“Anthony Brown”

for the Board