Company's business model involved independent contractors, but worker claimed employee entitlements
A worker who worked on construction projects for a general contractor under verbal agreements was an employee and not an independent contractor, according to the Ontario Labour Relations Board.
Fixit 4 You was a general contractor company in the construction industry that co-ordinated trades on projects. Its business model was based on engaging with independent contractors rather than hiring employees for its work, and all of its contracts were verbal except for those with large contractors such as builders.
The worker was a skilled bricklayer and mason who performed work on multiple projects for Fixit between April and September 2023. As with other contractors working with the company, the worker had no written contract. He was paid an hourly wage and a lump sum at the end of each project. In May, the company paid the worker $2,400 with no explanation or breakdown of what it represented.
Fixit usually kept track of the hours worked by the worker, which it said was to track the time expended on the project so it could estimate future projects. It denied this was to record the hours for which the worker would be paid.
Company provided large equipment, work provided small tools
Fixit provided large equipment on projects, such as scaffolding and cement mixers, the builders provided cement and bricks, and the worker would provide his own tools of the trade such as a level, trowel, chalk line, and measuring tape. Fixit’s owner attended the project site to check on how the worker was going, but he didn’t come every day.
On May 16, Fixit gave the worker a letter stating that it confirmed that he was an employee of the company since April, outlining his hourly rate and the hours he worked per week. According to the company, the letter was provided to help the worker obtain housing and didn’t reflect his actual status.
The worker worked most days and asked Fixit’s owner whenever he wanted a day off. According to him, he worked full-time on Fixit’s projects and wasn’t free to work for anyone else.
After the worker stopped working for Fixit, he submitted an employment standards claim for unpaid wages, overtime pay, and vacation pay. An employment standards officer accepted the claim and issued an order for Fixit to pay the worker $2,537.82 plus administrative fees.
Worker was independent contractor: company
Fixit filed an application for a review of the officer’s order, maintaining that the worker was an independent contractor and therefore not entitled to the payment. The company didn’t dispute the amount of the order in the event the worker was found to be an employee under the Ontario Employment Standards Act, 2000 (ESA).
The board noted that the ESA protects employees, but independent contractors don’t fall within its jurisdiction. It also referred to the Supreme Court of Canada’s statement that there was no universal test on whether someone was an employee or an independent contractor, but it essentially came down to whether the person performing the services is doing so on their own account for their own business or not. Several factors, such as who provides the tools and who controls the work, come into play, the board said.
The board found that the evidence showed that Fixit managed the project as a whole and monitored the worker’s performance. The worker wasn’t permitted to engage helpers or assign work without the company’s approval, and his hours were governed by Fixit’s project schedule. In addition, the worker said that he required permission to take a day off and
Employer-employee relationship
The board also found that the worker had no capital investment or management responsibilities beyond his own work – Fixit provided large equipment and oversaw work on the project - and that the only financial risk he bore was the risk of not being paid.
The board determined that Fixit controlled the essential elements of the worker’s work and therefore the worker was an employee for the purposes of the ESA. It dismissed Fixit’s application and upheld the order to pay the worker $2,537.82 for wages, overtime pay, vacation pay, and administrative fees.
