For Employers

Independent Contractor or Employee

• It is important to remember that an employment relationship is defined not only by what the parties set out in an employment agreement, but also by the characteristics of the employment relationship.
• In some cases the working relationship is more properly characterized as that of ‘independent contractor’
• To determine the appropriate category one must take into account the nature of the relationship between the parties to determine it is a contract of service (employer-employee) or a contract for services which would imply an independent contractor relationship.
• Employees and independent contractors are treated differently for tax purposes.

How does the law determine an employee’s status in cases of a dispute?

• The written agreement is reviewed to determine the agreed characteristics of the relationship.
• The law has developed a test to determine the relationship and basically is seeking the answer to the question: What degree of control does the employer have over the individual in the employment relationship? The more control there is on the employer side, the more likely a court will characterize the relationship as one of employer and employee.
• The following indicators can assist in making a determination:
  • Control of job, job duties, hours of work, location of work;
  • Ownership of tools;
  • Chance of profit; and
  • Risk of monetary loss based on business revenues
• In addition, the “organizational test” examines how integral the individual’s work contribution is to the employer’s business operations to assist in determining whether this individual is an employee.
• While there are many more factors that are taken into account to make the final determination, the following have been used by the court to assist with characterisation of the relationship:
  • Is the work arrangement full or part-time?
  • Is the individual incorporated in a business and paid through that business?
  • Do the terms of the contract state that the individual is an independent contractor?
  • Are standard statutory wage deductions made?
  • Does the individual file an income tax return as an employee or as self-employed?
  • Who provides the desk, office space or other facilities to the individual?
  • Are company tools such as computer, business cards, equipment, etc. provided?
  • How much control does the company have over the manner and method, time and location of the individual’s operations?
  • How much co-ordination/supervision is provided by the company’s representatives?
  • Can work be freely subcontracted to others?
  • Can the individual set his or her own hours and are there obligations to the company with respect to regular working hours?
  • Does the individual performs his or her own scheduling?

Workplace Harassment and Bullying – Information for Employers

• Since June 15, 2010 with the coming into effect of Bill 168, the Occupational Health and Safety Amendment Act(Violence and Harassment in the Workplace), employers in Ontario have a new obligation to protect employees from workplace violence and harassment.
• The Occupational Health and Safety Act now defines workplace harassment as: “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably be known to be unwelcome”.
• Workplace violence is defined as:

1. “the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to a worker;
2. “an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to a worker”; or
3. “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker”.