The Unisus private school in Summerland lost its appeal and was disciplined by the Employment Standards Tribunal over $1,100 in unpaid salary to a foreign national teacher who was working illegaly at the school without a work permit.
The Employment Standards Tribunal issued its decision on Dec. 20, following an appeal by the school over an earlier determination by the director of employment standards in September, 2022.
That determination found that back in 2021 the school had failed to fully pay out the time the teacher had worked for Unisus, awarding the teacher $1,107.53 in outstanding pay, along with $645.81 in unpaid vacation time before leveling four $500 penalties against the school for breaching the Employment Standards Act.
The director had found that although the teacher had been hired as a ‘contractor,’ her relationship was more accurately that of an employee.
Unisus appealed the decision, arguing against the decision to call the teacher an employee, and in doing so argued that because the teacher had been hired to work illegally without a work permit.
“[The teacher] was identified as a foreign national who is illegally working in Canada without a work permit. Whether [the teacher] is an employee or contractor, a foreign national cannot work in Canada unless the individual has proper and valid work permit. When such individual cannot work, he/she cannot be treated as an employee thus cannot be a paid worker,” reads the section of the school’s appeal quoted in the Dec. 20 decision.
The Dec. 20 decision, lays out that the school had offered the teacher the position in April 2020, and that after signing a contract, had informed them that she did not have a contract. The decision states that the school purported to hire her as a “contractor” and after entering the country with a tourist visa and began working part-time as a counsellor and art teacher.
According to the decision, Cindy Leung, one of three directors listed for the school and the writer of the school’s appeal, argued that there was no proof of any contract with an annual salary, and further that if there was such a contract, it was “void from the beginning” due to the teacher’s lack of a work permit.
Later in the decision, the compensation including the annual salary, boarding stipend and monthly salary for the teacher, were all laid out in an email that was entered into evidence for the tribunal.
The teacher had ended up resigning after being informed by the school that their “consulting arrangement” needed to end as the school needed to clean up its business records, recommending that the teacher either incorporate a foreign consulting company or have her spouse set up a Canadian consulting company so that her wages could be paid to going forward.
Instead, the teacher resigned.
The tribunal upheld the decision of the director of employment standards, and noted that the payments and penalties from that earlier decision would include any additional interest that may have accrued.
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