Worker was sponsored by sister's family to come work for them but family dispute led to parting of ways
This edition of You Make the Call features a housekeeper who claimed she was underpaid and unfairly dismissed by her family.
Mable Fernandes, 58, came to Canada in 2001 to work as a live-in caregiver and housekeeper for her sister, Dora Goveas, and her husband Arthur, who lived in Stittsville, Ont., and ran their own business. Her employment with the Goveas fell under the federal government’s caregiver program, which allowed immigrants to work as caregivers until they could apply for permanent resident status. They sent Human Resources Development Canada a job offer for Fernandes for minimum wage less room and board, but Fernandes claimed they promised her $5,000 per month.
After an initial refusal of Fernandes’ work visa, the Goveas hired a lawyer to help renew it and helped prepare her for the English language interview. Fernandes obtained her permanent resident status in 2004, but continued her role in her sister’s household.
According to Fernandes, she took care of the children before school and prepared the family’s breakfast. She cleaned the house and prepared lunch during the day and picked up the youngest child from daycare, looking after her until bedtime. She also prepared dinner, cleaned up afterwards, and put the children to bed. Though she didn’t have childcare responsibilities on the weekend, she claimed she had to prepare all meals for the family and any guests they entertained.
Fernandes also claimed she did gardening, lawn care, and snow clearance, as the Goveas worked long hours at their business.
The Goveas claimed that the house was small and Dora Goveas shared much of the cleaning and often was home early enough to help with the children. Arthur Goveas said he took care of the lawn and a company took care of snow clearance after large snowfalls. They said often there wasn’t much for Fernandes to do, but they felt they were giving her a better life than in India.
In 2009, Arthur Goveas started a business in India with the brothers of Dora and Fernandes. They had a dispute that caused tension in the household and caused Arthur to be unhappy with all of his in-laws — including Fernandes. Fernandes said she didn’t take any sides, but when she asked for a raise, Dora became so angry she assaulted her and fired her. Arthur Goveas claimed Fernandes sided with her brothers in the dispute and gave them six months’ notice that she would be leaving. Her employment with the Goveas ended in September 2010 when the Goveas gave Fernandes $5,000 and asked her to sign a release. They also prepared a record of employment that stated the reason for leaving was “shortage of work/end of contract.”
Fernandes sued for wrongful dismissal and unpaid wages, saying the Goveas owed her the difference in their promised wage of $5,000 per month and the minimum wage, as well as overtime pay for the long hours she worked.
You Make the Call
Was Fernandes underpaid and wrongfully dismissed?
OR
Did she quit and wasn’t entitled to any additional pay?
If you said Fernandes was wrongfully dismissed, you’re right. However, if you think she should have been paid more salary, that’s not the case. The court found that while Fernandes said she was promised $5,000 per month in an oral contract, there was no evidence this was true. The job offer submitted for her work visa supported the minimum wage argument by the Goveas, and “for an oral agreement to exist, the essential terms of the contract must be agreed upon by the parties.” In addition, Fernandes proceeded to work for minimum wage and didn’t question it for years. The court also noted $5,000 per month was “well outside the usual range” for a live-in caregiver and housekeeper in 2001.
However, the court found that it was likely Fernandes worked long hours. Though the Goveas disputed how much cleaning, meal preparation, and childcare was shared, the fact was Fernandes was required to be in the house during those times and wasn’t in a position to leave during the day for personal reasons. She was on duty first thing in the morning until the children went to bed. The court determined that on average, Fernandes worked 10-hour days during the week and four hours a day on the weekends, for a total of 58 hours per week — making her entitled to 14 hours of overtime pay each week under the Ontario Employment Standards Act, 2000.
The court also found it unlikely that if Fernandes quit, her employers would have given her $5,000 and had her sign a release. Combined with the stated reason for leaving on the record of employment, it was apparent that the Goveas terminated Fernandes’ employment, said the court.
The court ordered the Goveas to pay Fernandes the equivalent of 10 months’ pay in lieu of notice — at minimum wage with overtime pay factored in.
For more information see:
•Fernandes v. Goveas, 2016 CarswellOnt 5179 (Ont. S.C.J.).
