CHARLEEN POKORNIK DOESN’T FEEL LIKE HER OWN BOSS. If she can prove it she’ll be a lot better off.
Charleen is a delivery driver for the Skip the Dishes online food delivery service franchise in Winnipeg. They call her an “independent contractor.” She says she’s not. She wants to go to court to prove it.
Charleen is seeking class-action certification for her lawsuit. She alleges the company misleads its workers by telling them they are private contractors. It’s a claim the company uses to deny its workers all that is due them under the law.
The Manitoba Employment Standards Code sets out minimum standards for terms and conditions of work for employees, such as minimum wages, overtime and holiday and vacation pay. Independent contractors, however, are exempt from these standards.
Turning employees into private contractors also allows Skip the Dishes to increase their profits by paying less in overall labour costs.
The formal statement of claim says: “The defendant [Skip the Dishes] is in a position of power and control over class [action] members, and class members are necessarily in a vulnerable position vis-a-vis the defendant.”
It goes on to say the company “has been unjustly enriched” by not providing workers with entitlements under employment standards legislation.
If a judge grants Charleen’s request for class certification, all couriers across Canada would automatically become part of the lawsuit and would share in any damages that may be awarded.
The complex case relies on a number of different statutes across the provinces where Skip the Dishes now operates, and there is no one criterion that distinguishes a private contractor from an employee.
Despite that, Charlene and her lawyers claim they can demonstrate all the drivers are clearly employees.
They point to the fact that the company hires, trains and supplies the tools necessary for the drivers to do their jobs. The company sets the prices and compensation for workers, and customers contact the company directly.
Drivers don’t receive payment from customers for most of their work, and are paid directly by the company on specified weekly paydays.
'I feel like and employee'
The following comments are taken from an online discussion of what it is really like to work for Skip the Dishes. The comments come from a driver with 17 months experience behind the wheel.
“I calculated on some rare days to be making $15-$17 an hour EXCLUDING any deductions.”
“I calculated on most days to be making $9-$13 an hour EXCLUDING any deductions.”
“SKIP THE DISHES is not a place to make $$$$$$$.”
“We get paid $4-8 PER DELIVERY...Tips, many people tip. BUT The tip is not $5 or $10 or whatever,... We rely heavily on tips. Without tips, there is no Skip the Dishes.”
“The reason why I got into this is the freedom of working for yourself, not a person, not a company. You don’t have to do what you have to do at any employer (When it’s slow, you sit back and relax or go shopping or something! Not having to worry about your boss up your ass.)”
But now these guys won’t give you the freedom of working how you want to. You want to stay in one area but yet they demand you to go to the other side of town, then back to where you were at for an order, then back to the other side of town.
“I FEEL LIKE AN EMPLOYEE. Not a business.”
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