The Ontario Labour Relations Board Decision in Sandhu v Brar, 2013 CarswellOnt 9676 (ON LRB).
The applicant, Chamkaur Singh Sandhu (“Mr. C. Sandhu”) in his capacity as a director of the numbered company 1363047 Ontario Ltd. (the “Employer”) brought an application for review of a Director’s Order to Pay the claimant, Harpreet Brar (the “Claimant”).
The Claimant was a software engineer with ambitions to work as a computer technician. On October 20, 2009, the Claimant emailed Manbir Sign Sandhu, (“Mr. M. Sandhu”), brother of Mr. C. Sandhu and former director of the Employer, inquiring about a position with the Employer. A few weeks after the inquiry, Mr. M. Sandhu contacted the Claimant and offered the Claimant to work as a co-op student in an unpaid position. It was explained that the Employer frequently allowed high school and college co-op placements in the Employer’s workplace.
During the Claimant’s tenure with the Employer, the Claimant installed software, answered the telephone to provide customer service, and was instructed on how to build personal computers. The services the Claimant provided to customers were paid for by those computer services. The exact date that the Claimant cease working at the Employer was not discovered by the Board.
In or about March 2010, the Claimant sent Mr. M. Sandhu an email which advised that the Claimant had worked 88.5 hours between November 2 and 15, 2009. Mr. M. Sandhu contacted the Claimant via telephone and explained that the Claimant was not entitled to wages because he was a co-op student during the described period.
At issue is whether there was an error in the Director’s Order to Pay the Claimant.
Ontario Labour Relations Board’s Decision
The Employer argued that the Claimant was a co-op student receiving training during the material period of time, and as such, was not entitled to wages. Alternatively, the Employer submitted that if the Board found that the Claimant was an employee, the Claimant only worked for one week.
Was the Claimant a co-op student?
The Board first turned to section 1(2) of the Employment Standards Act, 2000, S.O. 2000, c.41 (the “Act”):
For the purposes of clause (c) of the definition of “employee” in subsection (1), an individual receiving training from a person who is an employer is an employee of that person if the skill in which the individual is being trained is a skill used by the person’s employees, unless all of the following conditions are met:
- The training is similar to that which is given in a vocational school.
- The training is for the benefit of the individual.
- The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.
- The individual does not displace employees of the person providing the training.
- The individual is not accorded a right to become an employee of the person
providing the training.
- The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.
In light of the above, the Board held that the training that the Claimant received from the Employer did not fall within the exemption from the definition of employee under the Act. As such, the Board concluded that the Claimant was entitled to be paid for his work.
Specifically, the Claimant, a trained software engineer, answered the telephone and installed computer software. The Employer acknowledged that it received a benefit from the Claimant’s skills, particularly, the Employer charged its clients for the Claimant’s services. The Board noted while there was evidence that the Claimant received some training, the Board found that there was no evidence to support that the training was comparable to vocational school training.
How long was the Claimant employed for?
Mr. M. Sandhu testified that the Employer did not maintain records for students’ hours as a general practice. The Board noted that there was no evidence before it, except for the email sent to the Employer from the Claimant in March 2010, which stated that the Claimant had worked 88.5 hours. As such, the Board found that the Claimant had worked for more than one week.
The Board dismissed the Employer’s application and affirmed the Order to Pay the Claimant.
The above discussion reminds employers that if it appears that an employer is receiving a benefit from a student or intern, there may be a strong argument that the student or intern is in fact an employee. Simply classifying a person as a student or intern does not meet the strict guidelines that govern unpaid student work or internships. The student or intern must receive some form of training, which is beneficial to the student or intern. It is advisable that if an employer is considering offering an unpaid internship or student opportunity at their workplace, the employer should familiarize themselves with the Ministry of Labour guidelines and be mindful of the above example. It may be prudent to seek legal advice to discuss in detail the possible obligations owed to a student or intern.
From a student or intern perspective, the above discussion serves as an example that even if you agreed to work without pay for training, if you are more or less not receiving training and providing a benefit to the employer, you may be entitled to wages.