Orlov v. Amato, O.L.R.B. Rep. 373, 2003 CarswellOnt 3467
An 11-year-old and two 13-year-olds sold chocolates door-to-door, for up to 12 hours a day, during March and April 2002. Their employer, the All Ontario Youth Group, based in Vaughan, Ont., was to give them 50 cents a box commission as compensation. After days, or in some cases weeks, of work the employer did not compensate the children at all.
The children’s working conditions were not good. Their supervisor, Joe Amato, would pick the kids up in groups of six and drive them to their sales location. Without any input from the children he would decide where and when the sales would be conducted.
He told them how to make sales, what to say, which streets and houses to go to and where to stand for pick-up when they were finished. He determined how long the shifts were, sometimes up to 12 hours. The children had to get Joe’s permission to go to the washroom, eat or buy food. He yelled at the children or threatened them if they disobeyed his instructions in any way.
The children were told to lie about why they were canvassing. Joe told them to say they were trying to earn money for their mother’s birthday or else to buy a computer for themselves.
The children would sometimes be taken to beer or liquor stores where they would stand for up to three hours at a time.
Joe would occasionally show a paycheque to the children (made out to someone else) as an inducement to work harder.
The children ultimately quit, and when they tried to get their pay from Joe and his wife, Maria Amato, she would swear at them and tell them to stop phoning her.
An employment standards officer investigated and ruled the children were owed commission money but not minimum hourly wages or vacation pay.
The decision hinged on whether or not the children were “route salespersons” or “salespersons.” Salespersons would not be entitled to minimum hourly wages or vacation pay but route salespersons would.
An application was made to review the decision about the additional money.
A prior case suggested that “route salesperson” should be interpreted as a salesperson who sells away from the office and whose employer controls the work hours and prospects for sales. Other cases suggest the issue of employer control is not the only factor in determining whether sales are “route” or not since that word is not used in the actual statute. However, since no one could come up with what the other factors might be, a decision was made that control would have to be the major factor.
The board found the three children were, indeed, route salespersons and were entitled to be paid minimum hourly wages and vacation pay in addition to commissions owing.
One child was awarded $1,151.48, covering 135.5 hours at minimum wage, including vacation pay. The other two were awarded $420.26 and $200.72 respectively.
An 11-year-old and two 13-year-olds sold chocolates door-to-door, for up to 12 hours a day, during March and April 2002. Their employer, the All Ontario Youth Group, based in Vaughan, Ont., was to give them 50 cents a box commission as compensation. After days, or in some cases weeks, of work the employer did not compensate the children at all.
The children’s working conditions were not good. Their supervisor, Joe Amato, would pick the kids up in groups of six and drive them to their sales location. Without any input from the children he would decide where and when the sales would be conducted.
He told them how to make sales, what to say, which streets and houses to go to and where to stand for pick-up when they were finished. He determined how long the shifts were, sometimes up to 12 hours. The children had to get Joe’s permission to go to the washroom, eat or buy food. He yelled at the children or threatened them if they disobeyed his instructions in any way.
The children were told to lie about why they were canvassing. Joe told them to say they were trying to earn money for their mother’s birthday or else to buy a computer for themselves.
The children would sometimes be taken to beer or liquor stores where they would stand for up to three hours at a time.
Joe would occasionally show a paycheque to the children (made out to someone else) as an inducement to work harder.
The children ultimately quit, and when they tried to get their pay from Joe and his wife, Maria Amato, she would swear at them and tell them to stop phoning her.
An employment standards officer investigated and ruled the children were owed commission money but not minimum hourly wages or vacation pay.
The decision hinged on whether or not the children were “route salespersons” or “salespersons.” Salespersons would not be entitled to minimum hourly wages or vacation pay but route salespersons would.
An application was made to review the decision about the additional money.
A prior case suggested that “route salesperson” should be interpreted as a salesperson who sells away from the office and whose employer controls the work hours and prospects for sales. Other cases suggest the issue of employer control is not the only factor in determining whether sales are “route” or not since that word is not used in the actual statute. However, since no one could come up with what the other factors might be, a decision was made that control would have to be the major factor.
The board found the three children were, indeed, route salespersons and were entitled to be paid minimum hourly wages and vacation pay in addition to commissions owing.
One child was awarded $1,151.48, covering 135.5 hours at minimum wage, including vacation pay. The other two were awarded $420.26 and $200.72 respectively.
