Worker had control over his work, worked for another company at same time
The Canada Industrial Relations Board (CIRB) has dismissed an unjust dismissal complaint filed by a worker because the worker was an independent contractor, not an employee.
G3 Canada is a company that sells, stores, and purchases cereal grains around the world. It operates export terminals in British Columbia, Ontario, and Quebec.
In February 2019, G3 advertised a position for a “grain commercialization officer” in Quebec, whose duties were to purchase and sell grain, develop and retain a client base, and ensure follow-ups with the terminals and logistics teams.
The worker was interviewed for the position, but G3 decided to hire another candidate. However, the company felt that the worker had a significant amount of skill and knowledge in selling and buying grain, so it asked the worker if he would be interested in an “associate officer model” in which the worker would work with G3 as a broker. At the time, the company worked with two brokers, who were independent contractors who sold and purchased grain and contacted G3 officers, who would then prepare a contract. The brokers invoiced G3 for their work and were paid solely by commission.
G3 also thought this would be a good way to use the worker abilities without integrating him into the team, as it had noticed tension between him and other officers.
Paid by commission
According to the company, it suggested an unwritten agreement in which it would share its price list with the worker so he could perform transactions on its behalf, and it would pay him a commission. However, according to the worker, G3 hired him as a grain commercialization officer.
The worker was paid by commission, he wasn’t on G3’s payroll, he didn’t have an office on G3’s premises, he used his own equipment – car, phone, office furniture, and computer – and he didn’t have access to G3’s computer system or email. He also wasn’t given sales objectives by G3 and worked from home, occasionally attending meetings at G3’s offices that the company treated as optional.
Starting in 2019, the worker also bought and sold grain on commission for another company and regularly worked at that company’s offices. At one point, in this capacity he sold grain to G3.
The worker’s relationship with G3’s senior procurement director for Eastern Canada deteriorated over time and eventually the director stopped sending him G3’s price list, preventing the worker from selling or purchasing grain. In late 2020, G3 cancelled a transaction the worker had completed. However, the worker believed the company owed him more than $100,000 in unpaid commissions.
Dismissed at meeting
The worker met with the procurement director on Dec. 15 to resolve the matter, but things grew heated and the director dismissed the worker. According to the director, the meeting was cordial and the worker told him that he would be stopping his activities with G3 because he had found a new job.
In March 2021, the worker filed an unjust dismissal complaint under the Canada Labour Code. G3 raised an objection on the grounds that the worker was an independent contractor, not an employee, so he couldn’t be unjustly dismissed under the code.
The worker maintained that he should be considered an employee of G3 and the company had wrongfully terminated his employment. He insisted that G3 offered him an officer position and pointed out that he was required to attend meetings with other members of the G3 sales team. He argued that G3 decided to dismiss him rather than pay his outstanding commission.
The CIRB focused on several key factors that distinguished the worker’s role from that of a G3 employee. Among these were his method of compensation - one dollar commission per tonne of grain sold or purchased - his lack of a formal employment contract, the absence of a fixed salary or benefits, and his autonomy in providing his own work tools and managing his schedule. The worker worked from home, didn’t have access to G3’s internal systems, and wasn’t subject to the company's performance management program, all of which were typical characteristics of G3's employees, including grain commercialization officers.
Independent contractor
Additionally, the worker wasn’t required to work exclusively for G3 and was free to offer his services to other companies, which he did through his involvement with the other company for whom he sold and purchased grain during his time with G3.
The CIRB applied both Quebec civil law – which defined a contract of employment as working “under the direction or control of another person” and a contract of services as “no relationship of subordination exists between the contractor… and the client” - and common law principles to assess the nature of the relationship between the worker and G3, determining that the worker’s role fit the criteria of an independent contractor. The CIRB emphasized the lack of legal subordination in the worker’s work, a key factor in employment relationships under both legal frameworks. The CIRB concluded that G3 exercised minimal control over the worker beyond setting grain prices, reinforcing his status as an independent contractor.
The CIRB determined that it lacked the jurisdiction to hear the complaint, as the worker didn’t meet the criteria of an employee under the code. The complaint was dismissed. See Ménard et G3 Canada Ltd., Re, 2023 CIRB 1062.
