Delivery driver had 'elect to work' contract with staffing company
The Supreme Court of British Columbia recently dealt with an employment law case involving a worker's claim for severance pay against his former employer.
The case highlighted several important issues related to employment status, termination, and the proper legal procedures for pursuing such claims.
At its core, the dispute centered around whether the worker was entitled to severance pay after his employment ended with a staffing company.
The court's decision touched on multiple aspects of employment law, including temporary work arrangements, proper termination procedures, and jurisdictional matters for hearing employment-related disputes.
The case involved a 64-year-old worker who had been employed by a staffing company for roughly 44 months, primarily driving trucks to deliver auto parts.
The worker began his employment with the company in August 2017 after an interview with the company president. He was assigned to work with a truck rental company, which in turn was contracted to deliver parts for a major auto manufacturer.
A key point of contention was the nature of the employment relationship. The worker contended he was a full-time employee entitled to severance pay when the work ended.
However, the employment agreement he signed characterised the role as a temporary "elect to work" arrangement:
"You acknowledge that your relationship with us is entered into as an elect to work arrangement, and that you have a right to decline any job we contact you about without penalty. You also acknowledge that as an elect to work employee, you are exempt from termination pay."
Despite this contract language, the worker regularly worked 40 hours per week delivering parts to various locations. His main role involved delivering auto parts to different operations in and around Vancouver, Langley, Richmond and Surrey, starting at 4:30 in the afternoon.
This highlights the sometimes blurry line between temporary and permanent employment status.
A central issue was whether the worker's employment had actually been terminated, which would trigger potential severance obligations.
The sequence of events leading to the dispute began when the worker was injured in a workplace incident in March 2021. He made a claim for workers' compensation benefits but did not immediately inform his employer of the injury or claim.
When the employer learned of the worker's disability, they informed the truck rental company and sought replacement drivers. Shortly after, in early April 2021, the employer learned that the contract to deliver auto parts was under review. The worker believed the contract ended around April 27, 2021.
The worker believed his job ended when he was asked to remove personal belongings from a work truck, viewing this as an implicit termination. However, the employer maintained they never formally terminated the worker.
They argued he remained on their roster of available workers, but failed to communicate about his ability to return to work after the workplace injury. The employer stated:
"The company was of the view that they had not terminated the [worker's] employment; rather it was waiting for him to return when he was able to work."
The court discussed the procedural issues with how the worker pursued his claim. The worker had filed a petition seeking a declaration that he was entitled to severance pay under the Employment Standards Act.
However, the court emphasised that claims under the Employment Standards Act (ESA) must be filed with the Director of Employment Standards, not directly in court:
"Claims under the ESA must be commenced by application to the Director of Employment Standards. There is no authority to commence this proceeding either by petition or notice of civil claim in the Supreme Court of British Columbia for relief under the ESA."
Additionally, the court noted that wrongful dismissal claims seeking damages must be commenced by a formal notice of civil claim, not a petition. The judge explained:
"It is clear the [worker] seeks common-law damages for wrongful dismissal which must be commenced by notice of civil claim in this court; the [worker] declined to characterise his claim in this manner."
These points highlight the technical procedural requirements that can impact employment-related legal claims.
The court also noted potential issues with the timing of the claim, as it was filed in January 2024, potentially outside the two-year limitation period if the employment was deemed to have ended in April 2021.
Ultimately, the court declined to grant the worker's requested declaration about severance entitlement. However, it provided guidance on how to properly pursue such claims, including:
"In my view, there are substantial issues of fact that are in dispute and must be resolved before a decision can be made in this case. Moreover, there are a number of legal issues, including whether the [worker] is entitled to the declaration he seeks in the manner it is framed in the petition."
The court also cautioned against piecemeal litigation, noting the worker's plan to potentially pursue claims against other companies associated with his former employer:
"It would be an abuse of the courts process to attempt to achieve the result expected by the [worker]. Converting this petition to an action may give him the opportunity to expand of the claims he might wish to make against other parties."
Finally, the judge exercised discretion to convert the improperly filed petition into a formal legal action:
"In the result, I will exercise my discretion to convert this proceeding commenced by petition to an action as provided for in Rule 22-1(7)(d) of the Rules."
This outcome provides a path forward for the dispute to be properly adjudicated, while reinforcing important procedural requirements for employment-related legal claims.
The case serves as a reminder of the complexities surrounding temporary employment arrangements, the importance of clear communication during workplace injuries and contract changes, and the need to follow proper legal procedures when pursuing employment-related claims.
