Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Telemarketer fi ghts over employment status THIS INSTALMENT of You Make the Call involves a dispute over whether a worker was an employee or not. Michael Libourkine was a broker selling insurance products associated with various fi nancial institutions and based his business out of an offi ce he rented in a suite of offi ces maintained by a company called Toronto Mutual Group (TMG). Libourkine placed an ad online and in the newspaper for "telemarketing services" in 2009 and hired Mark Roberts to conduct telemarketing in order to produce leads. Li- bourkine would then use the leads to meet with prospective clients and sell them insur- ance and other fi nancial products. ere was no written agreement between Libourkine and Roberts, but Libourkine testifi ed the terms were strictly a "pay per lead" system with no bonuses. Leads were contacts resulting in appointments with potential clients Roberts booked through telemarketing. Roberts later testifi ed that Libourkine trained him on the products he sold and what to say on telemarketing calls, but Li- bourkine said he only showed him a bro- chure on the products. Roberts said Libourkine supplied him with a list of contacts from which Roberts would make his telemarketing calls. Roberts said he worked out of Libourkine's offi ce at a second desk and would confi rm appoint- ments by calling potential clients the day before a meeting with Libourkine. However, Libourkine said he did not provide a list and Roberts initially worked from home, only working at TMG's offi ces when he request- ed to do so 18 months later. Libourkine said Roberts then worked at a space at TMG, but he saw little of him as Libourkine was rarely in the offi ce. Roberts claimed he submitted time sheets to Libourkine with the TMG name at the top, and he was paid by cheques drawn from the same account, which Libourkine confi rmed was his personal account. Ini- tially, the cheques identifi ed the payor as "Michael Libourkine TMG" with the offi ce address, but later the address was deleted and only Libourkine's name appeared. e amounts on the cheques were always whole dollar amounts and there were no deduc- tions from them. e business relationship between Rob- erts and Libourkine ended in August 2012. Roberts fi led a claim for unpaid wages, va- cation pay, termination pay, severance pay and bonuses. Roberts claimed he was owed three weeks' termination pay — "guessti- mated" at $762 — $31 in vacation pay on the termination pay and $1,336 vacation pay he hadn't received on his gross earnings. He said these amounts were estimates based on his approximate earnings while work- ing from Libourkine. Roberts also claimed he was owed $4,064 in unpaid bonuses for booking confi rmed appointments with cli- ents. e total claim was $6,361. YOU MAKE THE CALL Did Roberts not have any entitlement to termination and severance pay? OR Was Roberts entitled to proper compensation for his termination? IF YOU SAID Roberts was not entitled to any compensation, you're right. e board found Roberts didn't have much to go on in explaining his fi gures, as he had no written agreement and no documentation of any invoices or statutory deductions. All the fi gures Roberts was claiming were whole dollar numbers because they were specula- tive estimates, not based on hard numbers. Roberts also didn't have any record of hours worked because it was not relevant to his compensation and the business relation- ship — supporting Libourkine's claim that compensation was strictly a "pay per lead" arrangement, said the board. e board also found Roberts didn't raise any issue with Libourkine not making statu- tory deductions from his cheques or provid- ing T4 slips because "he was not expecting treatment as an employee." Libourkine's testimony that he was only concerned with leads produced by the tele- marketing eff orts was consistent with the "pay per lead" arrangement and any other arrangement involving bonuses or hourly pay didn't make sense, said the board. Li- bourkine "had no interest in knowing or regulating where or when or how Roberts did his work" — only that it resulted in leads for him to potentially garner sales. e board also found Libourkine had no control over Roberts' work and opportuni- ties, did not control where he did the work or how he did it, or what equipment Roberts used. Additionally, the telemarketing work Roberts did was separate from Libourkine's business, which was selling insurance and fi nancial products. e board determined Roberts was not an employee but rather an independent contractor. As a result, Roberts was not entitled to any statutory compensation re- sulting from the termination of the business relationship. See Roberts v. Libourkine, 2015 CarswellOnt 3401 (Ont. Lab. Rel. Bd.).

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