Employment Law: Independent Contractor or Employee

Posted by Johannes Schenk on March 13th, 2010 — Posted in Employment Law

A sometimes thorny issue (aren’t they all all?) is whether the dismissed individual is an employee or an independent contractor. The issue has been recently adressed in McKee v. Reid’s Heritage Homes Ltd. , 2009 ONCA 916 (CanLII) (Ontario) and in Smith v. Centra Windows Ltd. , 2009 BCSC 606.

In short, the more the individual looks like an employee the more they will be treated as an employee for the purpose of a wrongful dismissal analysis. The Court will look at both the contractual terms and how those terms are actually exercised in the specific instance. Even where the contract calls the individual an independent contractor the court will treat that individual as an employee if the relationship looks like a traditional employment scenario.

At the end of the day, and in the absence of a properly written contractual notice period, common law notice reasonable notice periods may apply.

Wrongful Dismissal Reasonable Notice for Senior Older Employees

Posted by Johannes Schenk on March 12th, 2010 — Posted in Employment Law, Uncategorized

Palmer v. Clemco Industries Inc., 2010 BCSC 230 deals with the dismissal of two older, senior management level employees.

Employee 1: 60 years old, 14 year employee, service manager for a restaurant grease trap bio-remediator. 15 months reasonable notice.

Employee 2: Similar age and responsibility as an office manager. 11 month notice.

BC Court of Appeal Upholds 15 Month Wrongful Dismissal Award

Posted by Admin on March 12th, 2010 — Posted in Employment Law

Chapple v. Umberto Management Ltd. , 2009 BCCA 571, deals with the employment dismissal of a 38 year old, 13.5 year employed restaurant manager at one of Umberto’s Whistler locations. Including gratuities and tips her income was roughly $120,000.00 per year. The case is worth a read because it deals with a situation in which the employee’s income level is put into issue and describes some of the evidence that was considered to sort out the gratuitiy and tip components.

The BCCA upheld a 15 month reasonable notice award.