Pizza driver awarded $28,000 after misclassified as contractor
The Ontario Employment Standards Act, 2000 (“ESA”), provides a number of minimum entitlements to most employees in Ontario, including minimum wage, vacation pay, over time pay, and termination pay. Individuals that are true independent contractors are not covered by the ESA and are not afforded its protections.
In the case between Pizza Driver, Juan Jose Lira Cervantes, and Dominos Pizza, the Ministry of Labour found that Cervantes was misclassified as an independent contractor and was terminated after he complained to the company about it. The Ministry found that Cervantes was not paid minimum wage or the appropriate vacation pay during his employment, and therefore awarded him lost wages for the last two years of his employment. The Ministry also found that the his termination was a reprisal for his complaint about his status, and awarded him additional damages to compensate him. You can hear more about this story in the attached article.
It may seem attractive to classify a worker as an independent contractor to save some general employment costs. However, unless the individual is clearly a true independent contract, this could end up costing the company. If the Ministry finds a misclassification, they can award more than the lost wages over the past two years. Specifically, they have the ability to order a Notice of Contravention (that comes with a monetary penalty) or charge the company with a Provincial Offences Act. The Ministry of Labour has released a clear mandate to deter such misclassifications.
If you have any questions with respect to the status of a worker, please reach out to us.