Question

Camila is 45 years old and has worked as a Food Supplement Consultant at Healthy & Fit Inc. (the "Company") for the last 9.5 years. The Company specializes in the sale of food supplement and vitamin products in Ontario and has an annual payroll of $3 millions. The Company hires consultants like Camila throughout the province and assigns them a specific and exclusive geographical area (e.g. North York, Downtown Toronto, Barrie, etc.).

Camila and the other consultants sell the Company’s products door-to-door throughout their designated area and hold events and seminars at local community centres. Camila's contract is entitled "Independent Consultant Agreement". As per the Agreement, Camila is paid 3% for each product sold. Once a month, she picks up whatever products she needs from the Company's warehouse and delivers the previous month’s sales proceeds to the Company. She does most of her work from home or on the road going door-to-door. She uses her own car. Although she provides some additional dietary services for her own account, she is forbidden from selling any other food supplement and vitamin products. She works three days a week – typically Thursday to Saturday, from 3pm – 7pm, when potential customers are most likely to be at home.

Last week, Camila was advised that the Company was undergoing financial difficulties and that her last day at the Company would be in 2 weeks as per the notice period in her Agreement.

a) Discuss the arguments for and against Camila being an employee. [3 marks]

b) If Camila was an employee, would you advise her to sue for termination notice and severance pay under the Employment Standards Act or wrongful dismissal damages under the common law and why? Compare her possible entitlement to each and explain your choice. [4 marks]

Answer 1

A. After reading that article, Camila is not an employee of health & fit inc because she is only a food supplement consultant for 9.5 years. The company hires the consultant throughout the province and assigns them a specific marketing area and sells its product.

If she was an employee of the organization, she should work in the company's working process or management. She is the only consultant of the company that recommends customers to use healthy and fit inc company's product.

She works from home and collects the products from the company's warehouse and sells them to customers; the company provides a 3% commission on selling products.

B. If she were an employee In company, I would advise suing for termination notice and severance pay under the employment standard act or wrongful dismissal damages under the common law. The company can't dismiss employees based on due to undergoing financial difficulties. If the company wants to exclude an employee, the company should give an employee sufficient time to get the next job and provide him with compensation until the next post.