Canadian Employment Law Today

January 31, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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PM40065782 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com January 31, 2018 Owner of merged business not an employee BY JEFFREY R. SMITH THE ONTARIO Labour Relations Board has denied a claim for unpaid wages because the would-be recipient of those wages was not an employee and instead ran her own business that had merged operations. Joan Brennan was a chef who operated her own business, Elite by Design Catering, which catered weddings and other events. She ran the business without employees. In the spring of 2016, Brennan was ap- proached by Tim Seaton — the CEO of Aquatrust, a hot tub company that was di- versifying into other areas such as installing vending machines in workplaces and stock- ing them with prepared foods — with a pro- posal. Seaton suggested an arrangement in which Elite would supply the food for the vending machines Aquatrust operated. On May 20, 2016, Brennan and Seaton reached an agreement. e written but unsigned agreement stated that Brennan's business, Elite by Design Catering, would merge with Aquatrust in a division separate from Aquatrust's other divisions. It would include catering projects by Elite, wholesale food production for Aquatrust's vending machine division — called Market to Work — and any retail at the division's location. Brennan would receive 30 per cent of the division's profi t share "above and beyond her time" and Aquatrust would use the Elite branding for relevant services. ey had a verbal agreement that Brennan would be paid $15 per hour for her time worked. e agreement also stated that if Bren- nan "ever leaves our employ, she will have full rights to (Elite) branding to take with her." Brennan was in charge of menu design, staffi ng, obtaining raw materials, organiz- ing catering events, cost and quality control, equipment maintenance, and liaising with Market to Work staff . Brennan felt Aquatrust had control over her because Seaton had drafted the agree- ment and used the word "employ," though she didn't try to change it. She started provid- Time theft and dishonesty isn't, then is, just cause for dismissal Grocery store supervisor reinstated by arbitration board, but two courts upheld her dismissal for time theft BY JEFFREY R. SMITH A SASKATCHEWAN grocery store work- er who was fi red for time theft and then rein- stated has been left without a job once again after two courts upheld her termination. Denise Osbourne was a supervisor for the Yorkton Co-operative Association, which operated a grocery store in Yorkton, Sask. ough she had a manager above her, Os- bourne often was tasked with operating the store on her own without direct supervision. e Co-op expected her to ensure employ- ees followed policies and close up the store, which normally closed at 11 p.m. with em- ployees working until 11:30 p.m. getting things ready for opening the next day. Osbourne was supervisor of the store on June 30 and July 1, 2014. On the fi rst day, she closed the store at 10:40 p.m., and she and the other employees on duty left at 11 p.m. CREDIT: ANDREY_POPOV/SHUTTERSTOCK Worker recruited from long-time employer, then fi red after 2-and-one-half years pg. 3 Lengthy service with previous employer a factor in notice Former Walmart executive awarded $750,000 in extraordinary damages pg. 4 Retail giant's bad faith in removing exec warrants large award with Stuart Rudner EMPLOYEE on page 6 » COMPANY on page 7 » ASK AN EXPERT pg. 2 Staying in touch with employees on long-term disability leave

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