2022 CanLII 3827

DECISION NUMBER: 20220003

Employer

employer representative

HEARD BY:

Marisa La civita, appeals resolution officer

DATED: JANUARY 7, 2022

ISSUES

The employer objects to the Stakeholder Compliance Auditor’s (SCA) decision of October 29, 2020. This decision found that GL and CR were the employer’s workers and not independent operators.

The employer seeks reconsideration of the status decisions to find that both GL and CR were independent operators.

BACKGROUND

A notice of audit was sent to the employer, scheduling an audit of the employer’s payroll records, insurable earnings, contractors’ status, business activity and claims allocations on November 27, 2019. The years under audit were 2017 and 2018.

The audit visit was rescheduled to December 10, 2019 at the SCA’s request, and then to December 11, 2019 at the request of CR.

During the course of the audit, the status of non-construction contractors CR and GL came into question. As a result, each submitted a completed ‘Determining Worker/Independent Operator Status’ general questionnaire along with a questionnaire attachment, and supporting documentation. The questionnaires were signed jointly by the contractors and the employer.

The audit was reassigned to a different SCA for completion and processing. The SCA contacted the employer, speaking with CR, controller, and discussing the audit findings in detail. It was confirmed that the audit would be processed in the next week and that findings and supporting documents would be forwarded to CR’s email.

An audit findings letter, dated October 29, 2020 indicated that the audit resulted in premium adjustments to the employer’s account for 2017 and 2018 for the following reasons:

Excess Earnings
Other Earnings not on T4
Contractors’ Labour

The letter noted that during the audit, the status of non-construction contractors GL and CR came into question, and went on to discuss the status decisions made for each. Both GL and CR were found to have been workers during the periods under audit, and their earnings were included as insurable in audit years 2017 and 2018.

On November 20, 2020, the employer submitted a signed Objection Form dated November 18, 2020, objecting to the SCA decision of October 29, 2020.

In a letter dated December 23, 2020, the employer representative expressed the employer’s intent to appeal the status rulings for both CR and GL, and provided written submissions related to the employment status of GL.

The October 29, 2020 decision was reconsidered and upheld by the original SCA on March 11, 2021.

The employer was granted full access to the employer account file, and all pertinent documents used in reaching the decisions.

Both CR and GL were sent letters by the SCA on October 22, 2021 inviting them to participate in the appeal and advising them that the employer would have access to all information used in the decision-making process, respecting the conditions set by the Freedom of Information and Protection of Privacy Act (FIPPA) and the Workplace Safety and Insurance Board (WSIB) internal policies regarding access to information.

In a telephone conversation with the SCA on November 5, 2021, CR declined the opportunity to participate, but was not adverse to the employer and/or employer representative having access to personal information they provided during the audit. The conversation was documented in a letter sent to CR on November 10, 2021.

The SCA left a voice message for GL on November 5, 2021, requesting a return call with respect to participation and access. A follow-up letter was sent on November 10, 2021 requesting a response by November 30, 2021, indicating that if a response was not received, it would be interpreted as not wishing to participate in the appeal and not objecting to granting access of personal information collected during the audit to the employer and/or authorized employer representative. To date, there has been no response from GL.

The objection was forwarded to the Appeals Services Division, and is now before me for review.

AUTHORITY

Legislation:

Section 2 of the Workplace Safety and Insurance Act, 1997

Operational Policy Manual:

Published

12-02-01, Workers and Independent Operators 11-01-03, Merits and Justice

January 2, 2013 October 12, 2004

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. The employer’s request is denied based on the Workplace Safety & Insurance Act (WSIA), WSIB operational policies, and my assessment of the circumstances, evidence and arguments presented.

Subsection 2(1) of the WSIA defines an “employer”, in part, as “every person having in his, her or its service under a contract of service or apprenticeship another person engaged in work in or about an industry”

A “worker” means “a person who has entered into or is employed under contract of service or apprenticeship.”

Policy 12-02-01 clarifies that a “contract of service”, or employer-employee relationship, is one where a worker agrees to work for an employer/payer, on a full- or part-time basis, in return for wages or a salary. The employer generally has the right to control the work performed, and where, when and how the work is carried out.

A “contract for service” is one where a person agrees to perform specific work in return for payment. In this type of relationship, the employer does not necessarily control the manner in which the work is done, nor when and where the work is performed.

For all industries outside of construction, the WSIB uses the organizational test to determine if a person is employed under a “contract of service” or a “contract for service”. The test recognizes the features of control, ownership of tools/equipment, chance of profit/risk of loss, and other applicable criteria, such as whether the person operates as an integral part of the employer’s operation, or if they operate a separate and distinct business.

Policy 12-02-01 goes on to outline characteristics of workers and independent operators, and requires decision-makers to consider the statements on the questionnaires, as well as any other relevant information.

There are five industry-specific questionnaires, geared to the following industries: Courier, Logging, Retail stores, Taxis, and Trucking. However, the WSIB uses a general questionnaire to determine the status of individuals who work outside of these industries.

Given that GL provided mechanical repair services, and CR engaged in the provision of accounting services, the general questionnaire was applicable for both, and was appropriately used to determine status in both cases.

I will the review the status of GL and CR separately below; however, I will first address the following arguments that the employer representative has presented with regards to the status of both individuals:

Under Policy 12-02-01, decision-makers review elements of control, ownership of tools/equipment, the chance of profit/risk of loss, and whether the individual is part of the employer’s organization or operating their own separate business. However, it must be acknowledged that, no single element of a business relationship will be determinative as to employment status. It is for this reason that the Workplace Safety and Insurance Appeals Tribunal (WSIAT) has instructed decision-makers to use a “multifactorial determination process.” (“multifactorial determination process” term cited per WSIAT Decisions 921/89, 543/93, 1097/05, 2352/10, 2224/06, 1785/04 and 2110/15. We further acknowledge that each individual case is unique to its own set of facts and evidence and that there is no set formula or stringent test for the application of Policy 12-02-01. Therefore, in every case, the relative weight of the evidence is different and must be open to re-assessment.

WSIAT Decisions 921/89 and 543/93 precede the legislative authority of the Workplace Safety and Insurance Act, 1997, and thus, are not relevant to this appeal. However, I have reviewed the other cited WSIAT decisions. Although the working relationships in those decisions differ from the relationships before me in this case, I acknowledge that the WSIAT panels did use multi-factorial determination processes. I must also acknowledge that the factors considered in each decision were consistent with WSIB policy and legislation, and that the organizational test itself, is multi-factorial. Policy 12-02-01 recognizes that the questionnaires are designed to capture key elements of business relationships in specific industries, and do not necessarily include all the characteristics of workers and independent operators. No one factor is determinative of status, and there may be factors that weigh both for and against an independent operator or worker finding. Therefore, WSIB decision-makers consider and assess the questionnaire responses, the evidence presented, and any other information relevant to the working relationship when rendering a status decision.

i) The employer representative cites WSIAT Decision 2110/15 and asserts that where possible, administrative bodies should not disturb the clearly stated intentions of the parties entering into an independent contractor relationship unless the evidence clearly demonstrates that the intention is inappropriate and/or a “sham”.

Per WSIB Policy 11-01-03, the WSIB shall make its decision based upon the merits and justice of a case and is not bound by legal precedent. Every decision made by the WSIB must be based on the merits and justice of the case, which means decision-makers must take into account all facts and circumstances relating to the case, the relevant WSIB policy or policies, and the relevant provision or provisions of the WSIA. It is in doing so that WSIB decision-makers ensure that the decision-making process is fair, consistent and reliable. Regardless, I did review the WSIAT decision referenced and find the relationships under review in that decision differ significantly from the relationships under appeal in this case. Furthermore, there was a different version of policy 12-02-01 applicable in the WSIAT case, when compared to this case. This is not to say that I have not taken into account the intention of the parties when making this determination; however, just as in the WSIAT decisions cited, the parties’ intentions alone cannot be determinative of status. Intent is only one of many factors to be considered in the decision-making process when it comes to findings of worker or independent operator status.

ii) The employer representative argues that the contractors removed themselves from the availability of employee benefits available to the employer’s other employees. It is conceded the employer’s benefit plan was, and is, voluntary, but that the contractors did not participate in the plan because as independent contractors, they were not eligible.

I find this argument contradictory in the sense that it first implies that the contractors had the choice to remove benefits, and then that they were not eligible for benefits at all because of their status as independent contractors. I cannot say, for certain, which is the case due to a lack of evidentiary support, but as the benefits are ‘voluntary’, I would have to infer that for those workers choosing to participate, the benefits would come at a cost to the worker. If not, there would be no requirement for choosing as the worker would simply have benefits. As such, workers choosing not to participate in the benefit plan would be in a similar situation to the contractors, in that they would have to seek benefits elsewhere. In either situation, it would seem the workers would be contributing towards their own benefits, much like GL and CR would be.

iii) The employer representative states that the October 29, 2020 decision failed to make comment or analysis with respect to CR’s status with other government agencies, and placed little weight on GL’s status with other government agencies. It is agreed that the Workplace Safety and Insurance Act, 1997 and the Income Tax Act (“ITA”) (and by extension the Employment Standards Act, 2000 (“ESA, 2000”), the Occupational Health and Safety Act (“OHSA”), the Ontario Human Rights Code (“OHRC”), et al.) are mutually exclusive of one another; however, the interpretation of Policy 12-02-01 cannot, in any circumstances, dismiss the ruling of other government without creating a conflict of laws, and unbalanced decision-making.

I respectfully disagree with the employer representative’s comment pertaining to the October 29, 2020 decision as it relates to CR. The decision letter itself remarks that CR “collects and remits applicable business taxes”, and the Status Evaluation Worksheet completed by the SCA in evaluating CR’s relationship with the employer also notes that CR “files their taxes as self-employed”. The fact remains that the employer has not obtained a formal ruling from the Canada Revenue Agency (CRA) with respect to CR’s employment status. Even if they had done so, as is the case with GL, the CRA ruling would be only one of many factors considered when making a status decision for WSIB purposes.

The employer representative is correct in that the WSIB is not bound by the decisions of other administrative bodies. I, as a WSIB decision-maker, do not have jurisdiction over the laws and policies of other administrative bodies, nor can I base my decisions on factors outside of the WSIA, WSIB policies, or the WSIB’s accepted guidelines, practices and procedures.

Status Determination for GL

Degree of Control

In assessing the working relationship in terms of degree of control, I find that GL’s working relationship with the employer contains the characteristics of both an independent operator and a worker; however, leans more towards that of an independent operator.

As a licensed mechanic, GL would require little to no training and instruction with respect to the repair work carried out; however, the employer’s organizational chart identifies GL as Shop Foreman, reporting to the Small Vehicle Shop Manager, who in turn reports to the Fleet Manager, who directly reports to the President of the company. This indicates that GL is still ultimately under the employer’s supervision.

The questionnaire responses indicate, and I accept, based on the invoices submitted, that the hours and days of work are set by GL, and that GL is not required to devote full-time to the business of the employer. These are characteristically traits of an independent operator. Yet the method of payment, which is an hourly rate, paid at weekly intervals, is more indicative of a worker relationship.

On the questionnaire, GL also replied that the company’s approval is not needed to hire others to do the work. I find that this cannot be ascertained for certain, as GL has not hired others. However, given that GL reports to the Small Vehicle Shop Manager, and that the work is carried out on the employer’s premises, using employer-owned equipment, it would only follow that the employer would have to grant access to the premises and equipment, and thus, GL would have to seek the employer’s approval to bring in another person to do the work.

When considering the order or sequence of work, I am unable to find, based on the evidence before me that GL is not required to perform work in the order or sequence set by the employer, nor that GL’s work does not have to be coordinated with the work of others who work for the employer. I find it likely that GL would have to follow maintenance schedules or prioritize emergency repair work based on the employer’s business needs. In addition, given that GL is identified as a Shop Foreman, work would have to be coordinated with others who are on the employer’s payroll and are direct reports of GL.

While GL does not do work for the employer’s customers, I find that GL does act as a representative of the employer both within the employer’s organization, and externally. Submitted receipts for tool purchases identify GL as being from the employer’s business.

In determining control, I have considered that GL does not receive a T4 slip from the employer, and collects and pays taxes on their own behalf. I have also given extra consideration, and thus placed extra weight, on the fact that GL was deemed a “self-employed worker” by the CRA with respect to the insurability and pensionability of their employment with the employer. In doing so, I find that GL was more independent than not, in terms of control in the relationship with this employer.

Ownership of Equipment and Profit/Loss

My review and analysis of the evidence leads me to conclude that GL does not have a significant influence on opportunities for profit or loss, and is therefore a worker under this feature of the organizational test.

The employer representative states that actual profit or loss may be a small element in assessing the feature of Profit or Loss, but that WSIAT has clearly demonstrated that the primary consideration of this feature is the opportunity or risk of profit or loss. As such, the question is not what choices GL is making, but rather, whether GL has a significant choice in opportunities to earn a profit or suffer a loss.

The labour and tools used in the performance of the services are owned and operated by GL, and as the employer representative argues, this is to be distinguished from the assets that are the subject of the repair work (i.e. the heavy equipment and trucks owned by the employer). I concur with this, as Policy 12-02-01 specifies that, when considering ownership of assets as a feature of profit or loss, decision-makers must consider what assets are used, operated, or put into action when doing the work.

In this case, the only assets that are under GL’s ownership are labour and tools. All other assets required to do the work are owned by the employer.

With respect to the tools, I note that many mechanics, both workers and independent operators alike, are required to provide their own tools; however, I still consider this a trait of an independent operator. GL submitted few invoices for tool purchases, and those provided either identify GL as being part of the employer’s operation, or link GL to the employer’s address and/or phone number. This brings into question whether or not GL would have access to the same tools and tool prices if not somehow linked to the employer. However, based on the information on hand, this cannot be determined with certainty.

Other assets used when doing the work include the shop itself, along with equipment and machinery, all of which are owned by the employer. The employer incurs the overhead costs for running the shop, as well as purchase and maintenance expenses for machinery and equipment used in the shop. A mechanic, who is operating independently, would generally have their own garage, hoists, machinery, and other major equipment, whereas GL does not. Therefore, with respect to asset ownership and costs, I find the employer has more influence than GL in this relationship.

The SCA noted that there is no indication that GL pays for the parts required to complete the work, and the employer representative questions, given the business relationship, under what circumstances an independent operator would pay for the parts required to complete the work. The employer representative goes on to say that when having a car serviced and repaired, a mechanic does not pay for the parts, much the same as a person who repairs furnaces does not pay for parts, nor would they be expected to. However, I respectfully disagree with this assessment. In each of these examples, I find that the person carrying out the repairs would have the ability to source repair parts from their preferred suppliers, and would have an opportunity for profit while recouping those costs from the customer. This same opportunity for profit does not exist for GL, and there is no indication that GL has any choice whatsoever in the sourcing of parts or other supplies.

GL’s questionnaire response indicates that GL would be responsible to accept costs or losses resulting from poor workmanship. However, I do not find this to be the case, as there is no contract obligating GL to do so. If the work is unsatisfactory, I do accept that GL would most likely have to correct the unsatisfactory work; however, there would be no cost to GL in doing so. GL would still get paid the agreed upon hourly rate, while correcting the work, and therefore, would not suffer a loss of time or money. There is also no evidence to show, in the case of unsatisfactory work resulting in damage to the employer’s parts or equipment, that GL would have to reimburse the employer for such damages.

While I have taken into consideration that GL has provided services to two other clients, and thus has exhibited some market mobility, I have also considered that the majority of GL’s earnings during the years under audit were derived from this employer. In addition, working for more than one client does not mean, in itself, that GL is automatically an independent operator. It could be that GL is engaged as an independent operator by one client, while operating under a contract of service for another, or even that GL is a contracted worker in each case. Therefore, GL’s relationship with each client must still be examined independently.

In the relationship with this employer, I find that GL’s decisions have little impact on GL’s own opportunity for profit or loss over and above the negotiated rate of remuneration. While GL owns tools, GL does not own the major equipment or machinery necessary to do the work. The employer supplies all necessary parts and materials, and covers all major costs relating to the work, and GL is unable to make choices that would influence those costs.

Other Applicable Criteria

I have reviewed all of the other applicable criteria and find that GL is a worker under this feature of the organizational test.

The employer representative argues that significant weight be placed on: i) the parties’ intentions, ii) whether a person structures their affairs as an independent operator, and iii) the person’s status with other government agencies.

These arguments have been considered and addressed above, but I must add that when determining status, there are often conflicting messages with respect to the intention of the parties involved, thus precipitating the need for formal status rulings. In this case, the employer representative states that both circumstances and evidence indicate that GL and the employer have freely entered into an independent contractor relationship. However, while I understand that the parties both intended that GL would be hired on contract, whether intended or not, the working contract also has characteristics of a worker-employer relationship. The WSIB recognizes that there are contracts of service and contracts for service, and under Policy 12-02-01, it is the WSIB’s authority to determine who is a worker or an independent operator under the WSIA. Careful consideration of status is especially important to the WSIB, as all workers employed by a Schedule 1 or Schedule 2 employer have the right to claim for benefits in the case of a work-related injury.

I have taken into great consideration that GL has worked for more than one client concurrently, and that GL was ruled a self-employed worker by the CRA; however, these factors do not allow me to completely ignore all of the other applicable factors.

As previously mentioned, the work is performed on locations owned or controlled by the employer.

GL is paid at regular weekly intervals, and the payment history on record shows there is a continuing need for service in this case.

In addition, although the questionnaire response indicates otherwise, I cannot accept that GL does not act as a supervisor or representative of the employer. Evidence, in the form of the employer’s organizational chart, supports that GL is the employer’s shop foreman, which implies that GL is a front-line supervisor of the employer’s workers. Moreover, this confirms that the services GL provided, were integral to the employer’s operations.

Lastly, when considering the absence of a written contract, I must note that both parties have the ability to sever the work relationship at any time, without fear of penalty for breach of contract, which is not generally the case in a business relationship.

Ruling

I find the employer engages GL under a contract of service; therefore, GL is a worker.

The employer’s objection to GL’s status as a worker is, therefore, denied.

Status Determination for CR

Degree of control

In reviewing and evaluating the working relationship in terms of degree of control, I find the employer exercised a greater degree of control than CR.

I acknowledge, and have considered that, given the accounting services provided, and the education and knowledge required for the work, limited to no training would be required on the part of the employer regarding general accounting duties; however, in terms of supervision, the organizational chart shows, and I agree, that the employer has ultimate control as it is clear that CR reports to the president of the company. I do not accept the questionnaire response that CR does not need the employer’s approval to hire others to do the work. The organizational chart confirms that there are people in the employer’s accounting department who report to CR, all of whom are on the employer’s payroll. As such, I find, on the balance of probabilities that CR would need the employer’s approval to hire others when performing functions relating to the employer’s accounting.

While the questionnaire response indicates, and I accept, that CR is not prohibited from doing work for others, I do not accept that CR is not required to devote full-time to the employer’s business. The questionnaire attachment contradicts the response, noting that CR works 30 to 40 hours per week for this employer. I also find, per the tax records submitted during the audit, that over 86% and 89% of CR’s earnings were from this employer in 2017 and 2018, respectively. This supports the idea that CR is required to devote a significant portion of time and efforts to this employer.

With respect to the order and sequence of the work, unlike the responses provided, I do not find that CR has full control. CR is listed as having the position of controller on the employer’s organizational chart and has four individual reports including one in Accounts Payable, two in Accounts Receivables, and one in Payroll. There would have to be a coordination of CR’s work within the accounting department as a whole. Furthermore, while I find that CR would have some control over the hours of work, as the questionnaire indicates work is completed in the employer’s office as well as in the home, I do find that, when reporting to the employer’s office, CR must work the same or similar hours as others who perform accounting services. This is again due to the coordination of effort generally required in an accounting department, as well as due to the operating hours of the business, which, per the employer website, are limited to Monday-Friday from 8:30 am to 5:00 pm.

In addition, while I give weight to the fact that CR did not receive T4 slips, and filed HST, I am unable to conclude that CR has control over payments. We know that CR is paid a regular hourly rate of $45.00, and that CR is paid in regular monthly intervals, which are characteristically traits of a worker relationship. However, because, there is no contract, I find it is not possible to conclude who set the rate.

The employer representative asserts that if an employee-employer relationship existed, the employer would not require a monthly invoice from CR; however, I do not place great weight on invoicing as a determining factor of status, as generally, when payments are on contract, invoices are submitted for payment, regardless of worker or independent operator status. In the case of a contracted worker, the invoices would be no different than time sheets that are completed by workers who are on payroll.

Lastly, contrary to the questionnaire responses, I find that CR does, in fact, act as a representative of the employer. I have already established CR’s position as controller within the employer’s organization; however, CR is also listed as a member of ‘Our Team’ on the employer’s website, is listed on the employer’s telephone directory and has a dedicated telephone extension, as well as a dedicated company email address. In addition, the audit, and the employer’s WSIB account history shows that CR has been represented to the WSIB, via telephone and email, as a member of the employer’s organization.

Ownership of Equipment and Profit/Loss

I find that CR is a worker when considering the features of equipment ownership, and profit/loss.

I agree with, and invoices support, the employer representative’s statement that CR has worked for more than one company at the same time, and that CR is not prohibited by contract from doing work for others. However, given that the vast majority of CR’s income has been from the employer, it is important to also consider CR’s financial dependence on the employer, and to further evaluate CR’s ability to make a profit or suffer a loss when working for the employer.

CR’s questionnaire responses indicate that of labour, materials, tools and equipment, the only asset required to do the work is labour. The questionnaire also indicates that CR owns 80% or more of the equipment necessary to do the work. However, this answer cannot be accepted as there was no equipment identified as being required, nor was there any evidence submitted with the questionnaire to support that CR supplies equipment.

I concur with the SCA’s assessment that, given the nature of the work, and the statement from CR that they partially work from home, there would be an expectation to have expenses relating to computer and printer purchases and/or maintenance, yet no evidence of such expenses was presented. Likewise, there was no evidence presented to show that expenses were incurred for the purchase of accounting software. In light of this, I can only conclude then, that the equipment and software used to provide the accounting services were not paid for by CR.

The employer representative states that CR incurs expenses in the performance of the services, and that CR’s choice in buying items or services without expectation of reimbursement from the employer could result in a profit or a loss, unlike a worker who would require approval from the employer prior to incurring costs and requesting reimbursement.

I appreciate this argument; however, I must note that the only expenses that CR claims to incur in doing the work are travel, telephone and professional fees. With respect to travel, there is no evidence to support that CR is required to travel as part of the work contract. The only expectation is that CR is to be present at the employer’s office to perform work duties. In this sense, the travel is no different for CR than it is for any worker who would be expected to find a means of transportation to work. I accept that a telephone is required to communicate with the employer while rendering services out of the home, but I must also consider that no information has been provided to clearly demonstrate how much time is actually spent working from the home, and that a telephone is provided by the employer when working at the employer’s office.

In considering the cost of professional fees, I do not place great weight on the annual expense incurred as a feature of independence, as such fees are common to all individuals with professional designations, both workers and independent operators alike. There are many employers that require workers to have professional accreditations or designations as prerequisites to employment, who do not reimburse those workers for costs relating to the professional fees.

CR responded, on the questionnaire, that they would be required to incur costs or losses resulting from work corrections or improvements; however, this has not been demonstrated. In accounting, if there is a mistake made, the mistake can lead to significant financial costs and losses for the employer. There is no contract or other evidence to corroborate that CR would bear any responsibility for such costs, whether it be unpaid time to correct the mistake, or having to pay out of pocket for financial losses or penalties resulting from the error.

In light of the above, I am unable to agree with the employer representative’s argument that CR has a significant choice in opportunities to earn a profit or suffer a loss. I find that CR does not have a significant financial investment in the contract, nor does CR have the responsibility of paying for costs associated with the work, nor the ability to influence those costs.

Other Applicable Criteria

The other applicable criteria have been reviewed and I again find that CR is a worker.

The employer representative argues that significant weight should be placed on: i) the intention of the parties; ii) the nature structuring CR’s business as an independent contractor; and, iii) the conflict of laws that will be created in continuing to hold that CR is an employee. These arguments have been considered and addressed above.

I accept, and have placed weight on the fact that CR has paid taxes as a self-employed individual, has filed HST returns, and has worked for more than one company concurrently. However, CR displays more traits that are, characteristically, attributes of a worker. CR has had an ongoing relationship with the employer, working 30 to 40 hours per week for the same employer, which shows a continuing need for service. CR works on the employer’s premises and does not advertise their own business, but rather is marketed, both internally and externally, as part of the employer’s team. The services CR provides are integral to the employers’ operations, and either party can sever the relationship without risk of breach of contract, which would not be applicable in the case of a contract for service.

I must add that questionnaire responses are not accepted at face value when there is documentary evidence that contradicts the response. In this case, CR responded that they do not act as a supervisor or representative of the company, which I cannot accept, as the employer’s organizational chart and website prove differently. Furthermore, I do not accept the questionnaire response that CR is not required to submit regular oral or written reports to the company. The nature of the controller position itself, includes overseeing accounting functions and preparing financial reports such as balance sheets, income statements, budget reports, and the like.

Finally, I will say that my status decision pertains solely to the relationship between CR and this employer. It is altogether possible that CR is engaged, by other parties, under contracts for service, and not as a worker; however, those decisions are not before me, and this is not the case when it comes to CR’s relationship with this employer.

Ruling

I find that CR is the employer’s worker.

The employer’s objection to CR’s status as a worker is, therefore, denied.

CONCLUSION

The objection is denied.

GL and CR are workers in their relationships with this employer.

DATED January 7, 2022

M. LaCivita

Appeals Resolution Officer

Appeals Services Division