Delivery driver wants Domino's to pay up after years of making less than minimum wage

A father of six has filed a claim against a Domino's Pizza franchise alleging he spent more than four years working for the company earning below minimum wage when he should have been entitled to the wages and benefits of an employee.

Juan Jose Lira Cervantes — who is seeking back pay — also alleges he was taken off the schedule after he filed a claim with Ontario's Ministry of Labour. 

"I felt really bad. I didn't expect that after four years and four months. I was just trying to do something right, not only for me, but for my family," said Cervantes, who lives in Mississauga, Ont.

The 50-year-old said he began working as an independent contractor at the chain in November 2013. He drove his own car for deliveries, was not guaranteed set hours and this year was making $8 an hour plus tips.

Cervantes said he delivered pizzas for the franchise on Glen Erin Drive and worked in the kitchen, taking pizzas out of the oven, doing prep work and washing dishes.

In January, when the minimum wage rose to $14 an hour in Ontario, Cervantes said he began researching labour rules and believed his work fell under the category of an employee, a title that would allow him to be paid minimum wage. He said he approached the owner of the franchise in February, but was told he was classified as an independent contractor, which allows companies to pay a lesser wage.

Under Ontario's labour law, independent contractors are not entitled to minimum wage. They don't have the same protections as an employee and are not entitled to overtime or vacation pay. They also use their own tools and dictate their hours and clients. In contrast, employees are entitled to minimum wage, overtime and vacation pay but are told when and how to do their work.

Cervantes then filed a Ministry of Labour claim arguing he was misclassified from the outset as an independent contractor and that he should have been an employee all along. Cervantes wants the ministry to assess whether or not he's owed back pay for four years, during which he was paid far less than minimum wage.

Cervantes's claim was filed on March 9. More than a month later, he said he was taken off the franchise's work schedule.

"That was a low point … I kept thinking to myself that's not right."

I was just trying to do something right, not only for me, but for my family.- Juan Jose Lira Cervantes, father of six

Cervantes said he was stunned to be out of work. His family, including four young children living at home, relied on the income.

Guelph driver paid $5 an hour

Another Domino's delivery driver told CBC Toronto he was paid less than minimum wage.

Kyle Novak worked as an independent contractor for a Domino's franchise on Stone Road West in Guelph, Ont., in February 2017. His hourly wage was $5.

The 27-year-old Guelph University PhD student said he quit a week later to work at a Papa John's franchise for more money.

"It just seemed like [at Domino's] I was hired as an independent contractor, I was being treated as an employee, but I wasn't being paid as an employee and I found that discrepancy pretty unfair," said Novak.

Novak also felt he should be categorized as an employee with Domino's, and the Ministry of Labour agreed.

He filed a claim with the ministry and documents show nearly one year later, he was awarded $197.92 in back wages in addition to vacation pay.

In her decision, Employment Standards officer Mary Beth Beneteau said, "The [Domino's] employer representative ...  did not dispute the claim."

Novak said he hopes others in situations like his could potentially learn from the outcome of his claim.

"I'd like enough employees to be aware of it so that they can take similar action that I did and seek the compensation they're probably owed," said Novak.

"These stores ... they have the means to pay people a fair wage. If they aren't doing that, I think that's inexcusable."

More claims likely with higher minimum wage

Employment and labour lawyer Sunira Chaudhri says with larger companies like Domino's, the expectation is that workers are hired as employees because they are ambassadors of the brand: they wear the uniform, they do as they're told and don't have the freedom to create their own hours.

"Most drivers work long hours. They have a requirement to be at certain places at certain times because of the control that Domino's places on most of their workers — both having to work in store and driving," said Chaudhri.

"With big organization like Domino's, you'd expect that most workers are going to be employees."

She added that even if an employee — like Cervantes — signed a contract that classifies them as an independent contractor, that doesn't mean they can't make the case that they should be designated an employee.

With big organization like Domino's, you'd expect that most workers are going to be employees.- Sunira Chaudhri, employment and labour lawyer

Chaudhri said she expects to see more cases like Cervantes because of how much Ontario's minimum wage has increased this year. Many companies are looking for cheaper alternatives.

"More organizations are going to do what they can to avoid the employee relationship, especially with low level workers. We're going to see that going into 2018 and certainly 2019 when we see the minimum wage increasing again."

Domino's: 'We don't condone that'

The owners of the Mississauga franchise Cervantes worked at did not return calls from CBC Toronto, but Domino's Pizza International said it's taking the allegations seriously.

"It's unfortunate this has potentially happened to this driver. If it's true the franchisee did what they did. We don't condone that," said Jeff Kacmarek, the international marketing director for Domino's Pizza International.

Kacmarek said the corporation encourages individual franchises to hire drivers as employees but ultimately hiring decisions are left to their discretion.

"We conduct regular audits at all of our stores and part of that audit process is to make sure there's a contract in place for every contract driver in the store. Obviously, we can't be there to monitor what's going on in every particular situation. It'd be a 24-hour process," said Kacmarek.

Kacmarek said the company is conducting its own investigation into Cervantes's situation.

After CBC Toronto contacted the Domino's Pizza communications department, Cervantes said he received numerous phone calls from his boss offering him his position back — including an offer for him to be brought on as an employee.

"Had I accepted [the owner's] offer, the public would not know that there was ever anything wrong with the system Domino's currently has in place," said Cervantes.

"I hope that … all the other drivers are encouraged to ask for minimum wage and they shouldn't fear being fired for something that's their right."