An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Saturday, 7 September 2013

Co-op Student Owed Wages Despite Agreement

A short decision from the Ontario Labour Relations Board, Sandhu v Brar, 2013 CanLII 43024 (ON LRB) confirmed that even if an employer and employee agree that an unpaid intern will not be paid for his labour, if the work performed looks more like labour than training wages can still be owed to the employee.

What Happened in Sandhu v. Brar


As mentioned, the decision from the Ontario Labour Relations Board is rather short. The decision was actually an appeal from an Order to Pay Wages issued to the employer by the Ontario Ministry of Labour.

In reviewing the facts, Ontario Labour Relations Board Vice-Chair Kelly Waddingham found that claimant Harpreet Brar was a software engineer, who wished to work as a computer technician. A representative of the employer provided an email allegedly from Brar dated October 20, 2009 in which he inquired about a position with the company.

As found by the Board, Manbir Singh Sandhu, who was responsible for the company's operations, contacted Brar a few weeks later and told him that he could work as a co-op student but he would not be paid. The evidence was that employer frequently allowed high school and college co-op placements in the workplace, but that the employer did not maintain records for the hours or the work completed by students.

A finding was made by the Board that Brar installed software, answered the telephone and was instructed on how to build personal computers. Customers paid for the employer’s computer services.

In March 2010, Brar sent Manbir Singh Sandhu an email in which he claimed that he worked 88.5 hours between November 2 and 15, 2009. Manbir Singh Sandhu called Brar and told him that he was a co-op student and was not entitled to wages.

At some point Brar must have made a complaint of unpaid wages to the Employment Standards Office of the Ontario Ministry of Labour because Orders to Pay were issued, from which the employer appealed to the Board.

Decision of the Ontario Labour Relations Board


In reaching her decision that Brar was not a "co-op student" and therefore was entitled to wages, Vice-Chair Waddingham noted that:
21. Section 1(2) of the [Ontario Employment Standards Act, 2000] states:
(2) 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:
1. The training is similar to that which is given in a vocational school.
2. The training is for the benefit of the individual.
3. The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.
4. The individual does not displace employees of the person providing the training.
5. The individual is not accorded a right to become an employee of the person providing the training.
6. The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.
22. The training which Brar received from the employer does not fit within the exemption of Section 1(2) of the Act and therefore Brar is entitled to be paid for his labour.
23. The best evidence before me is both parties understood that Brar would not be paid during his training period. This is neutral, but not determinative.
24. Based on the employer’s evidence, Brar, a trained software engineer, answered the telephone and installed computer software. The directors acknowledged that they received the benefit of Brar’s skills and charged their customers for his expertise. In exchange Brar received some training as a computer technician, however there is no evidence before me that the training provided to Brar was comparable to vocational school training to become a computer technician. The employer provided no evidence as to what particular skills were taught to Brar or the number of hours of instruction.
In the result, the Order to Pay Wages was affirmed.

Takeaways for Employers


In a break from tradition, I am going to start with the takeaway for employers in this case.

The issue of unpaid interns has been a hotly debated topic as of late. Both sides have taken strong positions and both sides have, occasionally, made some compelling arguments both for and against unpaid internships.

In a comment to the Toronto Star on July 22, 2013, I said, "The bottom line is, if what is being done for the ‘employer’ looks like work, then it should be compensated as work." Given the Ontario Labour Relation Board's findings in Sandhu v. Brar, I am inclined to repeat that sentiment here.

What employers should note is not only are the requirements for unpaid internships strict and difficult to meet, especially the criterion that the person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained, but simply because both sides agree that the "worker" / "student" / "intern" will not be paid is not determinative of the issue. If the intern elects to make a complaint to the Ministry of Labour, even after he or she has left 'employment,' the Ministry can still order you to pay wages that ought to have been paid.

What should businesses and organizations considering taking on an unpaid intern do? Perhaps not surprisingly, I am going to suggest seeking professional legal advice. Not only can the Ministry order you to pay wages to what you thought was to be an unpaid intern, but the publicity that can surround such an order can be even more damaging. 'Getting it wrong' can be damaging and prudence would dictate ensuring that the approach taken is correct.

The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization with respect to this or any other employment law issue.

Takeaways for Employees


The takeaway for employees from this case is: even if you initially agreed with someone that you would not be paid for your co-op position, if what you end up doing looks more like work than it does like training, you may have the right to seek wages from the company that hired you.

While typically such cases can be handled by the Employment Standards Office of the Ontario Ministry of Labour without charge to you, for those looking for legal advice with respect to their situation, the employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you as well.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.


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