Canadian Employment Law Today

©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. 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: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 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 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 sal- ary, that's not the case. e court found that while Fernandes said she was promised $5,000 per month in an oral contract, there was no evidence this was true. e job off er submitted for her work visa supported the minimum wage argument by the Goveas, and "for an oral agreement to exist, the es- sential 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. e 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. ough 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 per- sonal reasons. She was on duty fi rst thing in the morning until the children went to bed. e 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 Stan- dards Act, 2000. e 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 appar- ent that the Goveas terminated Fernandes' employment, said the court. e court ordered the Goveas to pay Fer- nandes 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.). Housekeeper can't clean up family mess 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 Stitts- ville, 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 care- givers until they could apply for permanent resident status. ey sent Human Resourc- es Development Canada a job off er for Fer- nandes for minimum wage less room and board, but Fernandes claimed they prom- ised 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 con- tinued 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. ough 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. e 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. ey 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 busi- ness in India with the brothers of Dora and Fernandes. ey had a dispute that caused tension in the household and caused Ar- thur 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 fi red 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. ey also prepared a record of employment that stat- ed 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 diff erence in their promised wage of $5,000 per month and the minimum wage, as well as overtime pay for the long hours she worked.

• Cover