B.C. tribunal says worker’s status a 'question of mixed fact and law'
The British Columbia Employment Standards Tribunal has dismissed an employer’s appeal over the classification of a former general manager as an employee rather than an independent contractor.
Raven Point Landing (RPL) is a marina and inn in Vancouver. The worker started employment there on Oct. 1, 2021, as the general manager. A corporate director resolution set out the worker’s duties, which included hiring staff, entering into leases, managing the properties, and managing the day-to-day business. The resolution also stipulated that the worker required the director’s approval for decisions on rates and benefits for employees and certain expenses over a budgeted amount.
The worker performed all of these tasks for a monthly salary, for which the worker invoiced RPL under an “agreement for services provided.” The agreement stated that the worker was a contractor, not an employee and RPL didn’t make any statutory deductions from the payments it made to the worker.
According to the worker, he worked or was on call for six to 12 hours per day, seven days per week. Every day, he had to be available for any employee, facility, customer, inn guest, supplier, or director issues. The worker was able to decide some of his hours, but when he wasn’t working, he was on call.
RPL terminated the worker’s employment on Oct. 4, 2022. Four days later, the worker filed a complaint alleging that RPL failed to pay his wages in contravention of the BC Employment Standards Act (ESA).
Employee, not independent contractor
A delegate of the Director of Employment Standards found that the work being performed by the worker was integral to the business and RPL had control and direction over the worker’s work. In addition, the amount of hours the worker worked prevented him from performing other jobs and there was no evidence he was in the business of providing similar services to other companies, the delegate said in determining that the worker was an employee, not an independent contractor.
The delegate also found that the worker as a “manager” as defined in the ESA regulation and was therefore exempt from overtime pay. However, RPL still owed him regular wages and vacation pay, so the delegate awarded the worker damages for compensation, plus four administrative penalties of $500 each against RPL for four contraventions of the ESA.
RPL appealed the decision, arguing that the delegate erred in law in finding that the worker was an employee under the ESA. It pointed to the agreement for services provided that stated the worker was a contractor and required the worker to invoice for payment, and the lack of deductions the company made from the worker’s pay.
The tribunal noted that the worker’s status was a “question of mixed fact and law,” and a finding on such a question shouldn’t be set aside unless it was reached with a “palpable and overriding error.”
Level of control
The tribunal found that the delegate’s analysis of the worker’s employment status was reasonable and supported by evidence such as the worker’s duties, hours worked, that he was paid a monthly salary, the level of control RPL had over the worker’s work, and how integral his work was to RPL’s business.
Throw in the lack of evidence of the worker providing services to any other businesses, and there was no “palpable and overriding error” in the delegates determination that the worker was an employee, said the tribunal, adding that the service agreement, invoices, and lack of deductions from the worker’s pay didn’t outweigh the evidence supporting an employment relationship.
The tribunal found no basis to overturn the Delegate’s determination as the decision was free of any "palpable and overriding error." RPL’s appeal was dismissed and the original determination confirmed. See Raven Point Retreats Ltd. and Raven Point Landing Ltd. (Re), 2024 BCEST 111.
