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Serving up an employee or an independent contractor?

Ministry of Labour looks at working conditions of Domino's Pizza delivery driver
employment law
A former Domino’s Pizza delivery driver claimed that while he was effectively an employee of the restaurant, it treated him as though he was an independent contractor. Shutterstock

By Stuart Rudner and Shaun Bernstein

The last time you ordered pizza, your exchange with your delivery driver likely lasted under a minute. You probably exchanged some pleasantries, thanked her for the food, and hopefully left a half-decent tip.

You may have noticed the driver was wearing some form of uniform from the pizza chain, and her car was emblazoned with the company’s logo in some form or another.

So, was that driver an employee of the restaurant? According to Ontario’s Ministry of Labour, the answer is yes, and she should be entitled to everything that status has to offer.

In a recent case that made national headlines, a former Domino’s Pizza delivery driver was terminated after he filed a claim with the ministry earlier this year. The driver claimed that while he was effectively an employee of the restaurant, it treated him as though he was an independent contractor, which left him earning a mere $5 per hour, plus tips — an unsustainable wage for a father of six children.

Upon examining his working conditions, the ministry ruled that the driver was, in fact, an employee, and entitled to all benefits and protections afforded under the Employment Standards Act, 2000 (ESA). Yet, since the driver petitioned his employment status through the ministry directly, he was only eligible to receive two years of the back pay he was owed under his ESA entitlements.  

This case was far from the first of its kind. In 2017, a driver in Guelph, Ont., with similar circumstances made a successful claim against their restaurant for misclassification of their employment status. Nor is pizza unique in this regard — there are numerous professions where the line between employees and independent contractors is blurred, and more often mistaken entirely.

To review, an independent contractor is a worker who is truly independent from the business entity that is providing the work. A true independent contractor truly owns her work — she uses her own tools, remits her own taxes, can hire and control her own subcontractors, can reap rewards if the work comes in under-budget and take the financial hit if she overspends.

Conversely, an employee is under his employer’s control and direction in most all aspects of his work. In exchange for this though, he is entitled to ESA protections such as entitlements to minimum wage, overtime pay, vacation pay, termination and severance pay.

It would seem, by the standards outlined above, that delivery drivers devoting their working hours to one corporation are most likely employees. Yet how far do those ties really stretch?

In recent legal actions in Ontario and Manitoba, the ride-sharing service Uber and the meal delivery service Skip The Dishes have both been hit with lawsuits from drivers claiming they were not independent contractors, but actually employees. The drivers claimed that the companies controlled their rates of pay, the hours that they could work, who was assigned to which ride/delivery, and ultimately their earning potential.

There are, however, key differences between Uber and Domino’s, for example. Uber drivers predominantly use their own vehicles, and their own technology. They determine when they will and will not accept fares, and can decide on an ride-by-ride basis whether or not to accept a trip.

They can work as much or as little as they want, with no penalty should they choose to no longer accept rides. While Uber predetermines the fares to maintain a cashless transaction system, the drivers are fully in control of their own remittances, insurance payments, etc.

Needless to say, Domino’s delivery drivers do not have the same freedoms. Their shifts, deliveries, and base earning potential (save for tips) are all strictly controlled by their franchise, and they come to your door unquestionably as a part of their parent corporation. Unlike Uber, should they choose to stop driving, that will likely be the end of the road for their employment.

So, are Uber drivers really that much different from Domino’s? It is difficult to predict how a court would rule. Certainly, Uber drivers maintain some more signs of autonomy and flexibility, which would generally lead a court to find more independence. They might be deemed to be independent contractors, or even dependent contractor as a compromise. Until courts make firm rulings however, the answer is essentially up in the air, and lawyers will continue to drive themselves crazy trying to figure it out.

Shuan Bernstein is an associate at Rudner Law in Toronto.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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