Caregiver sues former employer, claiming $162,000 in lost wages

Posted by admin on May 29th, 2011

Laurie Monsebraaten, Toronto Star, May 29 2011

At 21, Lilliane Namukasa left Uganda to make a new life in Canada as a live-in caregiver for two small children. But after working full-time for two years, she was paid just $2,100 by her Brampton employer and then fired without cause, forcing her into a homeless shelter, Namukasa says in a claim filed in Ontario Superior Court. This is despite an employment contract that entitled Namukasa to receive approximately $22,000 a year, before taxes, minus $2,860 for room and board, she says in the claim.

Namukasa is seeking $162,000 for breach of contract and unpaid wages, statutory holiday pay and vacation pay. She is further claiming $33,000 for wrongful dismissal.

The allegations have not been proved in court.

The Workers’ Action Centre, a non-profit worker-based organization, says the case is one more example of wage theft faced by Ontario’s most vulnerable workers.

The centre, which is holding a Queen’s Park news conference Monday, is highlighting Namukasa’s plight and that of another live-in caregiver, as part of its campaign to beef up the province’s outdated Employment Standards Act.

“Workers should not be forced to take court action to recover unpaid wages, overtime and other employment standards entitlements,” says the centre’s coordinator Deena Ladd.

The centre wants the cap on money recoverable under the Employment Standards Act raised to $25,000 from $10,000. It also wants the six-month time limit on monetary complaints increased to 3.5 years for live-in caregivers. That’s because they must accumulate the equivalent of two years of full-time employment hours before they can apply for permanent residency. The centre also wants the labour ministry to expand outreach to vulnerable workers so they know their workplace rights.

Namukasa’s employer, Beatrice Ssekabira, did not return calls from the Star, and a statement of defence has not yet been filed.

But her lawyer, Warren Lyon of Angel Ronan S.L.R.P., said Ssekabira did nothing wrong.

“If you agree to work at McDonalds for $5.00 per hour and stay for five years and then decide later that you are a movie star who should have been paid millions, that is not the fault of the employer and you should not complain about it,” he wrote in an email.

“Be assured that my client is a victim of a very hurtful intention that rested in the heart of her employee,” he added.

In an interview, Namukasa said she didn’t question her $100 monthly pay when she began working for Ssekabira in March 2008, because she didn’t know the value of Canadian money.

But when her mother in Uganda became ill and asked her to send more money for medication, Namukasa said she asked Ssekabira to increase her pay.

“She told me I was already earning more money than I would ever make back home,” Namukasa said. “She told me to never tell anyone how much I was making.”

Namukasa, who has just turned 24, has a new job as a live-in caregiver for three children, ages 5, 4 and 2. She earns $1,200 a month, after tax and deductions.

“They treat me very well,” Namukasa said. “They respect me.”

A second caregiver, Vivian de Jesus, who will also tell her story Monday, says she cared for an elderly woman and her two adult children with developmental disabilities for 10 years, ending in April 2010. For the last two years, she lived with the family, working 132 hours a week — almost three times the statutory 48-hour work week. She did not receive overtime pay.

Her net weekly pay of $1,360 amounted to an hourly wage of $11.46. She is claiming $55,000 in unpaid wages, overtime and vacation pay as well as $154,000 in wrongful dismissal.

The allegations have not been proved in court, and a statement of defence has not yet been filed. The employers did not respond to requests for an interview. Their lawyer was on vacation and could not be reached for comment.

In addition to workplace violations, these women also face barriers to government enforcement of their rights, said Mary Gellatly of Parkdale Community Legal Services, which has been working with Carranza LLP on the lawsuits.

“Outdated time limits and caps on money recoverable under the Employment Standards Act mean the caregivers must do the government’s job by suing their former employers for basic wages and entitlements,” Gellatly said.

The women’s cases are believed to be the first cases of caregivers seeking to enforce their employment standards rights at the Superior Court level.

Ontario’s Employment Standards Act sets out the province’s minimum workplace regulations and is the only protection against abuse for low-paid, vulnerable workers — those who don’t have the benefit of unions or professional associations to help them negotiate terms of employment. It covers minimum wage, overtime, statutory holiday pay, severance, vacation and termination pay. Since the act is more than 40 years old, the Workers’ Action Centre says it never contemplated the unique working conditions of live-in caregivers whose work permits require them to live in their employer’s home.

A series of Star stories in 2008 and 2009 about the federal Live-In Caregiver Program prompted both the federal and provincial governments to change legislation. The province’s Bill 210 bans the payment of recruitment fees by caregivers, but it doesn’t protect them from wage theft and other workplace abuse, the centre says.

About one in three low-wage workers in Ontario are victims of wage theft, according to a survey by the centre released earlier this month. Since then, the centre has received calls from a group of 21 temp workers, 10 farm workers and four others who say they have suffered workplace violations.

About a dozen workers have contacted the Star with similar claims, including two former employees of condo painting company, Com-Kote Inc. (formerly Com-Kote Interiors Inc.)

In March, the ministry charged Com-Kote with 12 counts of failing to comply with an order to pay wages totaling more than $40,000.

The company’s owner, Frank Abbaglivo was scheduled to appear in court May 13 over the allegations. The case is put over until June 3.

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