Worker argued he was an employee, but employer claimed he was on contract
This instalment of You Make the Call involves a dispute over whether a worker was an employee or not.
Michael Libourkine was a broker selling insurance products associated with various financial institutions and based his business out of an office he rented in a suite of offices maintained by a company called Toronto Mutual Group (TMG).
Libourkine placed an ad online and in the newspaper for “telemarketing services” in 2009 and hired Mark Roberts to conduct telemarketing in order to produce leads. Libourkine would then use the leads to meet with prospective clients and sell them insurance and other financial products.
There was no written agreement between Libourkine and Roberts, but Libourkine testified the terms were strictly a “pay per lead” system with no bonuses. Leads were contacts resulting in appointments with potential clients Roberts booked through telemarketing.
Roberts later testified that Libourkine trained him on the products he sold and what to say on telemarketing calls, but Libourkine said he only showed him a brochure on the products.
Roberts said Libourkine supplied him with a list of contacts from which Roberts would make his telemarketing calls. Roberts said he worked out of Libourkine’s office at a second desk and would confirm appointments by calling potential clients the day before a meeting with Libourkine. However, Libourkine said he did not provide a list and Roberts initially worked from home, only working at TMG’s offices when he requested to do so 18 months later. Libourkine said Roberts then worked at a space at TMG, but he saw little of him as Libourkine was rarely in the office.
Roberts claimed he submitted time sheets to Libourkine with the TMG name at the top, and he was paid by cheques drawn from the same account, which Libourkine confirmed was his personal account. Initially, the cheques identified the payor as “Michael Libourkine TMG” with the office address, but later the address was deleted and only Libourkine’s name appeared. The amounts on the cheques were always whole dollar amounts and there were no deductions from them.
The business relationship between Roberts and Libourkine ended in August 2012. Roberts filed a claim for unpaid wages, vacation pay, termination pay, severance pay and bonuses. Roberts claimed he was owed three weeks’ termination pay — “guesstimated” at $762 — $31 in vacation pay on the termination pay and $1,336 vacation pay he hadn’t received on his gross earnings. He said these amounts were estimates based on his approximate earnings while working from Libourkine. Roberts also claimed he was owed $4,064 in unpaid bonuses for booking confirmed appointments with clients. The total claim was $6,361.
You Make the Call
Did Roberts not have any entitlement to termination and severance pay?
OR
Was Roberts entitled to proper compensation for his termination?
If you said Roberts was not entitled to any compensation, you’re right. The board found Roberts didn’t have much to go on in explaining his figures, as he had no written agreement and no documentation of any invoices or statutory deductions. All the figures Roberts was claiming were whole dollar numbers because they were speculative estimates, not based on hard numbers. Roberts also didn’t have any record of hours worked because it was not relevant to his compensation and the business relationship — supporting Libourkine’s claim that compensation was strictly a “pay per lead” arrangement, said the board.
The board also found Roberts didn’t raise any issue with Libourkine not making statutory deductions from his cheques or providing T4 slips because “he was not expecting treatment as an employee.”
Libourkine’s testimony that he was only concerned with leads produced by the telemarketing efforts was consistent with the “pay per lead” arrangement and any other arrangement involving bonuses or hourly pay didn’t make sense, said the board. Libourkine “had no interest in knowing or regulating where or when or how Roberts did his work” — only that it resulted in leads for him to potentially garner sales.
The board also found Libourkine had no control over Roberts’ work and opportunities, did not control where he did the work or how he did it, or what equipment Roberts used. Additionally, the telemarketing work Roberts did was separate from Libourkine’s business, which was selling insurance and financial products.
