August 3, 2016
Sponsorship of caregivers from overseas is an increasingly common choice for families seeking affordable child care, particularly where there are two or more children in a household. In a recent case from Ontario, the Court considered basic statutory and common law employment principles in the caregiver context, where the parties were also related.
The employer couple immigrated to Canada from India. In 2001 they arranged for the wife’s sister to come to Canada and live with them as a caretaker and housekeeper under the Federal government’s caregiver program. The facts of the case reveal a progressive breakdown in the parties’ relationship, resulting in the end of the employment relationship in 2010. Shortly thereafter, the employee brought a claim for wrongful dismissal and overtime pay, among other claims.
The parties offered diametrically opposed evidence on every issue: the employee claimed she was promised $5,000 per month, while the employers asserted that she was entitled to payment of minimum wage less room and board. The employee claimed she worked 12 hour days and was frequently required to work on weekends to enable her employers’ to attend social functions, while the employers asserted that the employee had little responsibility for childcare and often had no household responsibilities. Although the Court did not accept the employee’s position on the terms of her employment, on balance, the Court preferred the evidence of the employee. The Court found as fact that she had poor English language skills, had very limited interaction outside the employers’ household, was diagnosed as autistic, and implicitly trusted her employers who were her also her biological family.
The Court cited the Employment Standards Act, which requires overtime to be paid where an employee has worked more than 44 hours per week, at a rate of one and half times the regular salary. This statutory standard applies to caregivers, notwithstanding the fact that the living and working arrangements may overlap. The Court made it clear that in situations where when no work has been assigned but an employee is not free to leave the workplace and pursue personal matters, generally speaking, that employee is “working” for the purposes of the Act, even in the absence of any productivity or benefit for the employer. The Court accepted that the Plaintiff did all the household tasks and childcare responsibilities and that these responsibilities involved both evening and weekend work, and she was entitled to pay based on 58 hours per week.
With respect to the dissolution of the employment relationship, the Court found that the employee was dismissed when her employers gave her $5,000, paid for her airfare to Calgary and asked her to sign a release. In assessing the reasonable notice period, the Court noted that the employee’s age of 51, coupled with her 9 years of employment which was longer than usual for such a position, favoured a notice period of 10 months of pay in lieu of notice.
This case is an important reminder that individuals and couples who employ caregivers are subject to the same statutory and common law employment standards as organizations and businesses. They must inform themselves of applicable employment laws and observe employee entitlements, failing which they may be held accountable by the Courts or the appropriate tribunal as the case may be.