A private workplace spat over wages has become a public battle about the rights of workers.
Murray Smith began working as a pizza delivery driver when Pizza Nova opened its new Orillia franchise at the County Fair Plaza a few months ago.
He 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 is paid $9 an hour – an increase of $1 an hour from their original rate.
That $1 increase came when franchise owners David Struga and Esmeralda Proko told drivers they would also be responsible to help with food preparation and cleaning the facility, Smith claims.
When Smith started making noise about the “unfair” practices at Pizza Nova, he claims his hours were cut drastically. Then, suddenly, he was told his “services were no longer required.”
“I was not surprised,” said Smith. “She has fired almost every driver that has worked there. Now, she’s hiring new drivers and paying them even less.”
Rather than go quietly into the night, Smith has taken his fight public. Over the holiday weekend – Labour Day, ironically – he parked in the lot outside Pizza Nova with a giant sign propped up on his vehicle alerting passersby about the situation.
On Monday, he said, the franchise owners called the police and asked him to be removed. However, that order has to come from the mall owners – and that came Tuesday when police arrived at the Westmount Drive plaza and gave him a verbal warning that he would be charged with trespassing if he stayed at the site.
“Basically, they say I’m trespassing,” he said. “That’s fine. I had already been sitting at the Tim Hortons (across the street) in a strategic location where people going through the drive-thru have an opportunity to read my sign. I think about 1,000 cars went by me this morning.”
He said he is not backing down. Not only is he trying to raise awareness about the legality or illegality of the franchise’s practices, he wants them to pay him $4,000.
Smith said he is owed that amount because 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 is also upset there is no vacation pay, no overtime pay and no holiday pay. He also said he and other drivers are not provided WSIB protection.
“If you factor in the (Canada Revenue Agency) rate of .55 cents per kilometre, they were actually paying me about $5 an hour,” said Smith, noting drivers receive no remuneration for gas, mileage, repairs etc.
He said he opted to go public rather than pursue other options for a variety of reasons. He said a Ministry of Labour investigation would “not spank” the franchisees and would be a lengthy process. He contended pursuit of restitution through Small Claims Court could also be time- and money-consuming.
“They messed with the wrong guy,” said Smith, who is retired. “This is now my full-time hobby. I’m not going away.”
The president of Pizza Nova did not respond to a request for comment. However, Vince Ambra, the director of marketing for Pizza Nova, emailed this response:
“Thank you for bringing this to our attention. Pizza Nova is a franchise organization comprised of independent business owners who each employ their staff on a restaurant-by-restaurant basis. We are not in a position to provide any comment, as employment and contractor matters are the responsibility of each individual franchise owner. Pizza Nova operates with the highest standards of integrity and that is our expectation of all of our franchisees. We take this seriously and are looking into the situation further.”
An email to the local franchise owners was not returned.
Smith has not only set up his public display, he has lobbied the company’s regional manager and president for help. According to him, they have not responded to multiple inquiries.
He also contends, in a letter to the company president and also addressed to Orillia Mayor Steve Clarke who attended the store’s grand opening, that the franchise owner “said Pizza Nova's head office told her ‘all the other stores do this.’” She was referring to classifying drivers as independent contractors.
In his letter, Smith said: “I did find it strange that an Ontario company that espouses such family values would counsel a franchise owner not to comply with Ontario Ministry of Labour laws, but it became very clear early on that if someone raises even the slightest issue … you (would) no longer (be) on the next week’s schedule and (told) your services are no longer required.”
Smith is furious that the company has not responded to his concerns.
“I am very disappointed that I have received no other response from this company other than being served a trespass notice by the OPP,” said Smith, who says Pizza Nova operates about 140 franchise locations in the province. “I am sure they are fully aware of what the laws are here with respect to the Employment Standards Act and know full well that pizza delivery drivers are not independent contractors, they are employees, and need to be treated and paid as such.”
According to the provincial Ministry of Labour website, You may be considered an independent contractor when at least some of the following describes your work:
- You own and are responsible for some or all of the tools or equipment you use to do your job;
- You are in business for yourself, make profit and have a risk of losing money from the work you do;
- You determine how and/or where your work is completed;
- You can subcontract some of your work; and
- The business can end your contract for services, but cannot discipline you
The website says you would be considered an “employee” if the business decides:
- What you do;
- How much you will be paid;
- When the work needs to completed by; and
- How and where you complete your work
The website also notes that even if a person verbally or in writing agreed to be an independent contractor – as happened in his case – a worker can still be considered an employee. You can also be considered an employee if you use your own vehicle for work purposes.