How strata can sort out row over gardener

Sunday, June 13th, 2010

Some tests are used to set out whether he comes under heading of employee or contractor

Tony Gioventu

Dear Condo Smarts: Our strata corporation has extensive landscaping that requires a full-time gardener. We have hired this man as our contractor for the past seven years, and have decided to put out new specifications so we can confirm we are getting good value for our services. Unfortunately, our gardener took this personally and resigned on the spot, citing the hours of additional work he has given to us at no charge, and now he is claiming that we owe him for vacation pay for the past seven years. Our manager at the time advised it would be better to keep the man as a contractor so we didn’t have to address the employee relationship issues.

Everyone including the gardener agreed, but now it looks like it has come back to bite us.

How do other strata corporations deal with workers as employees or contractors? There must be all types of relationships, from caretakers, to managers, to service technicians, bookkeepers, maintenance personnel, and even casual in-house owners being hired for odd jobs. Where do we cross the line from contractor to employee?

Karin P. West, Vancouver Dear Karin: The relationship between an employer and employee/ contractor is set by a number of conditions through B.C. Employment Standards, through the Ministry of Labour.

Here are some of the tests used in determining the status of your relationship, which can be found on the ministry website:

Control — Is the person under the direction and control of another regarding the time, place, and way in which the work is done? Is the person hired, given instruction, supervised, controlled or subject to discipline? Was the person told what to do, how to do it, and when to do it? Did the person have to do the work him or herself, or could that person give the work to someone else to do? Does the person perform work normally or previously performed by an employee? The greater the degree of control, the greater the likelihood the person will be found to be an employee.

Ownership of tools — Does the person use tools, space, supplies and equipment owned by someone else? If so, this would indicate an employment relationship. However, it is recognized that some employers require employees to provide their own tools or vehicles.

Chance of profit — Does the person have a chance of profit? If their income is always the difference between the cost of providing the service and the price charged for the service, the worker may be someone other than an employee.

Risk of loss — Is the person at risk of losing money if the cost of doing a job is more than the price charged for it? This may indicate a nonemployment relationship.

Payment — Is the person paid regular amounts at set intervals? Does the person get paid regardless of customer satisfaction or customer payment? These factors indicate an employment relationship.

Common misunderstandings — One or more of the following factors is often wrongly believed to establish an independent contractor relationship: Agreement: The act of signing an independent contractor agreement does not necessarily create an independent contractor relationship.

The actual work relationship determines if a person is an employee or independent contractor. Any agreement to waive employment standards entitlements is prohibited by the act.

Tony Gioventu is executive director of the Condominium Home Owners’ Association. E-mail [email protected].

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