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Definition
of an Employee
A.
Definition of Employee Under Ontario Legislation
Section 1 of the Ontario Employment Standards Act provides a very general, non-exhaustive definition of the term "employee":
- "employee" includes a person who,
- performs any work for or supplies any services to an employer
for wages,
- does homework for an employer, or
- receives any instruction or training in the activity,
business, work, trade, occupation or profession of the employer,
and includes a person who was on employee;
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It is clear that, in determining whether an individual
is an "employee" for the purposes of the Employment Standards
Act, the existence of formal titles or other trappings of a relationship
which make the relationship appear to be something other than that of
employer/employee will have little, if any, influence on the issue at
the end of the day.
For example, in Re Becker Milk Co. Ltd. and Director of Employment
Standards of the Ontario Ministry of Labour, the company contracted with
individuals to act as "owners/managers" of its convenience stores. Becker Milk argued that as owners/managers, the individuals in question were not "employees" and therefore, not subject to the provisions of the Act. The Ontario Divisional Court disagreed, primarily as a result of the degree of control exercised by Becker Milk over these individuals.
A rather extraordinary example as to the breadth of the employment
relationship for human rights purposes, can be found in the recent decision of an Ontario Board of Inquiry in Roberts v. Chmiel and Club Expose. The pertinent facts of the Roberts case may be summarized as follows:
- Ms Roberts filed a complaint with the Commission on October 2, 1992, alleging that her right to equal treatment in employment without discrimination because of race or colour was infringed, contrary to ss. 5(1) and 9 of the Human Rights Code;
- Ms Roberts described herself as a "freelance burlesque dancer
'stripper'" and worked under the stage name of Nicole with a partner;
- she worked for Club Expose for one week in February, 1992, and
her partner, who was white, was asked by the personal respondent
Mr. Chmiel to return to work the following week alone "as he did
not want a black woman working in his club",
- Ms Roberts alleged that when she confronted Mr. Chmiel on the telephone about the comments he made to her partner "he confirmed that he did not want black women working in his club because they brought in black clientele and further stated that he did not want their business";
- Ms Roberts had been booked to work at Club Expose for one week in early February, 1992, through a conversation between her partner, Ms Power, and the night manager of the establishment;
- Ms Roberts testified that she received roughly $200 each night, in addition to her shift pay of $300 to $400, for a total of between $500 and $600 per shift;
- on the basis of the evidence adduced at the hearing, the Board of Inquiry concluded that Ms Roberts was hired by Club Expose as a nude dancer for a one-week period in February, 1992, and was paid a standard shift rate by Club Expose for her services. Ms Roberts and her partner, Ms Power, were sent by IM Productions, which was paid by Club Expose for referral services. The Board characterized this relationship as a "casual agreement to employ Ms Roberts for a period of one week".
There can be no doubt that the Board of Inquiry in the Roberts case had
to adopt a very broad definition of employment in order to establish a sufficient nexus between the owner of Club Expose, Mr. Chmiel, and the "employer". Since Mr. Chmiel had no direct link or affiliation with the agency that placed Ms Roberts with Club Expose, the Board of Inquiry, by implication, found that Ms Roberts was a co-employee of both the agency and Club Expose for the week-long engagement in February, 1992. The informal or "casual" nature of the agreement to employ Ms Roberts in no way detracted from the Board of Inquiry's finding that there was indeed an employment relationship during the material time period.
While the Roberts case is a somewhat extraordinary example of a broad and liberal interpretation of the employment relationship by a board of inquiry, it nonetheless is representative of the purposive approach that is typically taken by a board of inquiry in dealing with procedural and preliminary issues raised in the course of a hearing.
B. Definition of Employee Under Federal Legislation
Section 3 of the Canada Labour Code defines an employee as "any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations". It is reasonable to suggest that a tribunal appointed under the Canadian Human Rights Act would reject the restriction placed upon the definition of an employee under the Canada Labour Code, thereby removing the "management functions" bar expressly contained within the legislation. A managerial employee is no less an employee, from a human rights standpoint, than a non-managerial employee.
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