Canadian Employment Law Today

March 18, 2015

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 March 18, 2015 Dependent contractors awarded 26 months' notice of termination Cabinet-making couple started off as employees then became subcontractors but employer still essentially controlled their business By JEffrEy r. SMiTh An OnTArIO couple who were depen- dent contractors with three decades of ser- vice have been awarded almost $200,000 in wrongful dismissal damages and costs by the Ontario Superior Court of Justice. Lawrence Keenan, 63, was hired by Canac Kitchens — a company in the business of delivering and installing kitchen cabinets, vanities and countertops — in 1976 as an installer of kitchen cabinets. In 1983, he be- came a foreman supervising other install- ers. Also in 1983 his wife Marilyn, 61, joined Canac as a foreman after previously assisting her husband on an informal basis. In October 1987, Canac informed the Keenans they would no longer be employ- ees. Instead, they would be independent contractors while performing the same work for Canac. e Keenans would responsible for paying installers, who would provide their own trucks and pick up materials from Canac. Canac would set the rates paid to installers and pay the Keenans money from which the installers would be paid. Canac would also pay the Keenans on a piecework basis for each box or unit installed. Canac recommended the Keenans set up an incorporated company, as they would be responsible for their own employment in- surance, Canada Pension Plan and income tax deductions. ey would also be respon- sible for any damage to cabinets and their own insurance. e Keenans set up a business called Keenan Cabinetry — though it was never in- corporated — and Canac drafted a subcon- tractor agreement that stated "as a subcon- tractor of Canac, you will devote full-time and attention to the business of Canac and shall report to Canac's installation manager." Job duties continued under subcontractor agreement e Keenans' job duties and income re- mained essentially the same under the subcontractor agreement, so they signed it without seeking legal advice. Canac issued them each a record of employment that said the reason for issuance was "quit." e Keenans worked exclusively for Canac until 2007, with the exception of a few weekend jobs that were not invoiced through Keenan Cabinetry. In 2007, work from Canac slowed down, so they did some work for a competitor of Canac. e Keen- ans thought their agreement prevented Jail nurse faced abuse, ohs risk from manager pg. 3 Jail employees shocked at manager's breach of policy with Brian Kenny cRedit: WaVeBReakMedia/ShutteRStock church employee loses faith in employer pg. 4 Poor relationship with church leadership leads to health and safety, harassment complaints and dismissal Workers on page 6 » ask an exPerT pg. 2 Medical exemption from uniform shoes employee afraid of change not constructively dismissed: Arbitrator An OnTArIO employee was not con- structively dismissed when she left for an- other job after her employer proposed a new assistant and future review of her employ- ment terms, an arbitrator has ruled. Crystal Rabethge, 35, was the manager of a Sirens clothing store in Kitchener, Ont., owned and operated by YM Incorporated. In 2011, Rabethge gave notice to the compa- ny that she had accepted an off er of employ- ment with a competitor for a higher salary. Sirens responded by off ering to match that salary if she stayed with Sirens. Rabethge ac- cepted and stayed on to manage the store. Rabethge signed a new employment con- tract on July 5, 2011, that stipulated a sal- ary of $35,800 plus monthly bonuses and a guarantee that her income would be "a min- imum of $45,000 for each year provided you are still employed at YM Incorporated." e monthly bonuses were payable if Rabethge was employed at the end of each month. In August 2013, Rabethge met with the district manager and the vice-president of operations. ey indicated the appear- ance of the store needed improvement and eMPLoyee LeFT on page 7 »

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