Ontario Labour Ministry rules in case of Juan Jose Lira Cervantes, who for 4 years got less than minimum wage
A Domino’s Pizza franchise in Mississauga must pay a former delivery driver $28,144.54 in lost wages and other benefits for violating several parts of the Employment Standards Act, Ontario’s Ministry of Labour has ruled.
Juan Jose Lira Cervantes — a father of six — filed a claim in March arguing that for four years, he was doing the work of an employee but was being paid as an independent contractor making less than minimum wage.
In a decision dated Nov. 5, an employment standards officer with the Ministry of Labour ruled Cervantes was an employee entitled to minimum wage and other benefits.
“I was glad that they agreed with what I thought was right,” Cervantes told CBC News.
“I always thought that the amount that I was being awarded is merely what I should have been paid all along. This is just money that I am owed.”
First I complained. Then I was fired. It didn’t make sense. Because I had been working for them for four years.– Juan Jose Lira Cervantes
Under Ontario’s labour law, independent contractors don’t have the same protections as employees.
They set their own hours and use their own tools, but are not entitled to overtime or vacation pay. In contrast, employees are told when and how to do their work, but are entitled to the minimum wage and overtime pay.
Of the $28,144.54 the company is being ordered to pay Cervantes, $17,539.60 was wages owed for getting below minimum wage.
The Ministry of Labour ruling also found that since Cervantes was technically an employee, he was entitled to vacation pay, overtime pay, holiday pay and other benefits, and ordered the company to compensate him.
Cervantes also argued he was taken off the work schedule after his employer learned he filed the complaint.
“First I complained. Then I was fired. It didn’t make sense, because I had been working for them for four years,” said Cervantes.
“How come all of a sudden I was fired just after I made the complaint?”
The ministry found that to be an act of reprisal and said Cervantes must be compensated for that.
Though Cervantes began working for the company in 2013, he can only receive compensation for lost wages and benefits for the past two years. That’s because under the Employment Standards Act, an employment standards officer can only issue an order for unpaid wages if the employee has filed a claim within two years of when the wages were due.
It’s not the first time a Domino’s Pizza franchise in Ontario has been found in violation of the province’s employment laws.
In February 2017, a worker in Guelph filed a similar claim with the Ministry of Labour, arguing he was doing the work of an employee but was being treated as an independent contractor.
He was making $5 an hour plus tips. He quit after one week of work.
The labour minister agreed he too was an employee, and ordered that franchise to compensate him for lost wages.
Simone Ostrowski, with Whitten & Lublin Employment Lawyers, says she’s not surprised to hear that even a company as large as Domino’s is found to be committing these violations.
“Certainly in retail and restaurants, it’s very common to see the independent contractor versus employee debate,” said Ostrowski.
“Unfortunately, there’s a lot of workers out there in these types of contractor relationships that might not even know that the situation they’re in is potentially illegal. And they might not know they have a recourse to complain to the ministry.”.
Based on the arguments listed in the decision, Ostrowski said it’s clear Cervantes was an employee and not a contractor, and that this ruling could have have an impact on the industry.
“I would say that this decision could have ripple effects, perhaps across the entire industry, with respect to delivery drivers who are paid as contractors because the principles are still the same,” said Ostrowski.
“They can actually point to this decision and say, ‘Look at how the ministry ruled in this case. I’m in a very similar circumstance and you should rule that I’m an employee as well.'”
Company won’t appeal ruling
Under ministry rules, the Domino’s franchise has 30 days from the time the order is served to file an appeal, but a statement from the company said: “Our franchisee appeared in front of the Ministry of Labour, responded to the inquiry and will fully comply with the ruling issued by the Ministry of Labour.
“There are no plans to appeal the ruling,” said Jeff Kacmarek, vice-president of marketing and new product development with the Domino’s Pizza of Canada.
After CBC News began investigating in May, Cervantes said he received multiple phone calls and texts from his former boss offering him his job back and to be paid minimum wage.
At one point, Cervantes claimed he was even offered $5,000 in compensation.
But he said at the time he refused that because he said he wanted to proceed with the complaint and set a precedent.
“That was the most important reason why I made the claim,” said Cervantes.
“There are many drivers all throughout Ontario and even Canada that are not getting paid properly if they’re being paid as an independent contractor.”
Cervantes hopes the ministry’s decision will motivate others to speak out against employers violating the Employment Standards Act.
“It’s not right what they were doing: it’s not right now, and it will be better for [Domino’s Pizza] to follow the law,” said Cervantes
Originally posted on cbc.ca/news on November 14, 2018 by