A furious Pizza Nova delivery driver who went public earlier this week with his dispute over wages has negotiated a pact with the local franchise owner.
“I am satisfied with what has been proposed but the settlement will not be official until I receive the written agreement on Monday,” said Murray Smith.
The 62-year-old contends the eatery wrongly classifies drivers as “independent contractors” so they can pay them less than the $14 minimum wage. In fact, he said he was paid $9 an hour.
That represented a $1/hour raise after local franchise owners David Struga and Esmeralda Proko told drivers they would also need to help with food preparation and cleaning the facility.
Smith complained about the “unfair” practices. Soon after, his hours were cut and then he was fired.
That’s when Smith went public with his dispute. He parked outside the County Fair Plaza pizzeria with a giant sign propped up on his vehicle alerting passersby about the situation.
When he was warned that he would be slapped with a trespassing charge, he moved his mobile protest across the street. But he refused to back down and made repeated efforts to get the company’s executives involved.
Pizza Nova president Domenic Primucci contacted Smith Wednesday. On Thursday morning, Smith and the franchise owners met briefly, at which time Smith was presented a settlement. He rejected it.
On Friday afternoon, he accepted a revised deal and the matter will be “officially resolved” if the written pact mirrors what he was told this afternoon by the franchise owners.
Smith had been seeking $4,000. He contends the pizzeria owes him $5 for every hour he worked (the difference between what he was paid, $9, and the $14 minimum wage) and more for when he worked overtime.
He also criticized Pizza Nova for not providing vacation pay, overtime pay or holiday pay. He also said he and other drivers are not provided WSIB protection.
While he wouldn’t disclose details, Smith said he is “happy” with the deal. He said he has also been “overwhelmed” by the support he has received since the story was published in OrilliaMatters.
“It basically went viral … I have been recognized all over town since then,” he said.
Earlier this week, Primucci told OrilliaMatters he “doesn’t condone” paying a person less than minimum wage, but he would not comment further on this case. “I believe now the matter is between Mr. Smith and the franchisee from Orillia and they’re going to resolve their issues.”
When asked if he could champion this cause throughout the company’s 140-plus franchises, he said he would not.
“Yes, we are the franchisor, but we’re not in charge or involved in any of their employment practices,” said Primucci. “We can’t be by law. But, as I said, we don’t condone it and we’re there to help guide them … to operate a successful business.”
Smith, meanwhile, said he would like to see the Ministry of Labour be proactive and ensure employees are treated fairly.
“Companies shouldn’t be profitable on the backs of people being paid less than minimum wage,” said Smith. “We are not in a Third World country.”
A Ministry of Labour spokesperson said she could not declare if Smith, for example, should be deemed an employee or an independent contractor without an in-person investigation.
“It is important to note that each person’s situation is different,” said Janet Deline. “As a result, only an employment standards officer can determine, either during an inspection or an investigation, what entitlements an employee may have.”
Under the Employment Standards Act (ESA), “employers cannot misclassify employees,” said Deline. “This means that an employer cannot treat an employee as though they are not an employee. For example, employees cannot be treated as volunteers, unpaid interns or independent contractors if they would be considered employees under the ESA.”
An employer can be subject to penalties under the ESA, including possible prosecution if they are guilty of misclassifying employees.
“Although there is no single test to determine whether a person is an employee or an independent contractor under the ESA, the main question is whether the person is in business for themselves,” she said. “Some factors to consider include how much control the person has over their activity, whether they provide their own equipment or hire their own helpers, and how much financial risk must be taken by the person and how much profit the person can make.”
Individuals who have questions about the ESA can call the Employment Standards Information Centre at 416-326-7160 or toll-free at 1-800-531-5551.
Smith has abandoned his public protest. However, if the agreement presented Monday is not what was agreed to today, he said he would not hesitate to continue his protest.
