On August 17, 2020 Monkhouse Law commenced a proposed class action against T.E.S. Contract Services Inc. (herein “TES”). TES is one of the largest privately-owned temporary help agencies in Canada and provides thousands of workers each year to client firms, many of them in the information technology field.
Monkhouse Law has filed a $72.5-million lawsuit against the company for misclassifying their workers as independent contractors and failing to pay overtime, vacation and public holiday pay.
According to the ESA, a temporary help agency is a worker’s employer when the person is assigned to do work on a temporary basis for a client, and the worker is entitled to vacation pay, statutory holiday pay and overtime pay. In 2009, the Ontario legislature modified the ESA to provide that those working for temporary help agencies are employees and are entitled to minimum statutory protections. When the changes were debated in the Legislative Assembly, Members of Parliament stated:
“You have governments and employers in general that are trying to find ways around the legality of the law, and they have found one in the temporary employment agencies. The same way that governments, both federally and, I believe, provincially as well, used to use casual employment, you now have companies in the government and the private sector using the same thing with casual employees. The loophole needs to be closed…”
It is alleged that TES required workers to sign a contract stating that they were independent contractors and not employees, contrary to the provisions against contracting out of the ESA. The action claims that staff provided by TES worked side by side employees of the various client companies, but without the minimum receiving the minimum employment standards.
The issued Statement of Claim is available here: TES Contract Services – Statement of Claim
On February 20, 2024, the Ontario Superior Court of Justice decided that TES must produce the application submitted by the defendant, T.E.S. Contract Services Inc. to the Ontario government for a licence to operate as a temporary help agency (“THA”), as well as the accompanying documents and representations (the “Application”). TES submits that there is no basis in fact that it is a THA. The Court decided that TES should produce the Application and “whether there is some basis in fact that TES operates as a THA remains open to be decided at certification.”
The Production Motion was heard on February 15, 2024, and the Certification Hearing has been rebooked for May 14-16, 2024, before the Superior Court of Justice. The Decision on the Production Motion can be found here.
Should you have any information regarding TES Contract Services, or if you are concerned about misclassification and unpaid overtime in your workplace please contact Alexandra Monkhouse at email@example.com or phone to 416-907-9249 ext. 211.
Affected employees can keep up-to-date regarding the misclassification lawsuit by completing the form below: