Difference between revisions of "Preliminary Matters for Employment Law (9:IV)"
Jump to navigation
Jump to search
| Line 134: | Line 134: | ||
The distinction between employees and independent contractors under the ''Employment Standards Act'' is quite similar to that under the common law. It should be used when pursuing a claim at the Employment Standards Branch. | The distinction between employees and independent contractors under the ''Employment Standards Act'' is quite similar to that under the common law. It should be used when pursuing a claim at the Employment Standards Branch. | ||
“Employee” is defined in the ''ESA'', s 1. The Employment Standards Branch has published an | “Employee” is defined in the ''ESA'', s 1. The Employment Standards Branch has published an employee or independent contractor factsheet to assist in determining the difference between employees and independent contractors. It can be found at: | ||
https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/employee-or-independent-contractor | |||
Additionally, Employment Standards Branch staff sometimes use Levitt’s discussion of the control test, four-fold test, and integration or organization test in his book ''The Law of Dismissal in Canada'' (Aurora, Ont: Canada Law Book, 2003). | Additionally, Employment Standards Branch staff sometimes use Levitt’s discussion of the control test, four-fold test, and integration or organization test in his book ''The Law of Dismissal in Canada'' (Aurora, Ont: Canada Law Book, 2003). | ||
| Line 140: | Line 142: | ||
As previously mentioned, an independent contractor is not protected by the ''ESA''. However, just because an employer calls someone an independent contractor does not make him or her one. Generally, at the Employment Standards Branch, the onus is on the company to show that someone is an independent contractor. If there is a disagreement, the Employment Standards Branch will use the common law tests. Generally, the longer and more continuous the relationship, and the less control the contractor has over his or her employment, the more likely it is to be considered an employment relationship. | As previously mentioned, an independent contractor is not protected by the ''ESA''. However, just because an employer calls someone an independent contractor does not make him or her one. Generally, at the Employment Standards Branch, the onus is on the company to show that someone is an independent contractor. If there is a disagreement, the Employment Standards Branch will use the common law tests. Generally, the longer and more continuous the relationship, and the less control the contractor has over his or her employment, the more likely it is to be considered an employment relationship. | ||
Generally speaking, the ESA is to be given a wide and liberal interpretation (per ''Interpretation Act'', RSBC 1996, c 238, s 8; see also ''Machtinger v HOJ Industries Ltd'', [1992] 1 SCR 986 and ''Rizzo & Rizzo Shoes Ltd (Re)'', [1998] 1 SCR 27). The legislation is always construed broadly when determining whether someone is or is not an employee. | Generally speaking, the ESA is to be given a wide and liberal interpretation (per ''Interpretation Act'', RSBC 1996, c 238, s 8; see also ''Machtinger v HOJ Industries Ltd'', [1992] 1 SCR 986, https://canlii.ca/t/1fsd2 and ''Rizzo & Rizzo Shoes Ltd (Re)'', [1998] 1 SCR 27, https://canlii.ca/t/1fqwt). The legislation is always construed broadly when determining whether someone is or is not an employee. | ||
=== 3. Employees v. Contractors - Human Rights Code === | === 3. Employees v. Contractors - Human Rights Code === | ||