This case is a stunning example of mistreatment of a migrant worker. For two years, a Ugandan live-in nanny, Lilliane Namukasa, was paid only $100 per month to care for a family including two boys and clean the home. She worked 15.5 hours a day, seven days per week with no time off and no overtime.
Namukasa’s contract stated that she was to work as a live-in caregiver for “$427.50 a week in regular pay, minus $55 weekly to cover her room and board, plus $17 an hour for any overtime“. Now that is a striking difference. What’s more, after two years, the employer terminated Namukasa, which led her having to live in a women’s shelter.
The CBC reports the nanny recently launched a wrongful dismissal claim against her employer in the Ontario Superior Court, and is seeking damages in the amount of $195,000 for breach of contract, unpaid wages, statutory holiday pay and vacation pay.
How could this happen?
Upon her arrival to Canada, the nanny was not aware of her employment rights and may not have realized the exact value of the money she was given. To top it off, when she obtained information and tried to strike a conversation with her employer about her wages and statutory entitlements, the employer became furious and started taking things away, like her passport, work permit and phone privileges. The employer even threatened to call the immigration agents. Suddenly and without warning, the nanny was terminated without notice.
Another factor at play was the nanny’s desperation to accumulate a certain amount of time working in Canada. Namukasa came to Canada through the federal government’s live-in caregiver program, which gives nannies from foreign countries a temporary work permit and the chance to apply to immigrate if they complete two years of employment within a three-year window. Complaining could result in losing the opportunity to become a permanent resident.
Moreover, the nanny faced various barriers at the time, such as language and access to justice issues. In terms of access to justice, an employment standards complaint in Ontario offers a maximum recovery amount of $10,000 and a strict limitation period of six months to seek recovery of unpaid wages, including vacation pay.
That cap is a far cry from the $195,000 the nanny is seeking to recover. The strict employment standards complaint time limit might have prevented the nanny from accumulating her hours when seeking permanent residency. The only way to claim the moneys she was owed was to launch an action in court; in that more costly forum, there are no caps on damages and there is a two-year limitation period.
Further, the nanny was isolated since she was not permitted any time off to socialize with others. She was forced to stay at the employer’s home and the family was her only contact in Canada. Once she was terminated, she had no choice but to live in a women’s shelter.
This all occurred despite the various legislative changes that have taken place in the last two years to protect the rights of foreign workers. On March 22, 2010, The Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 (EPFNA) came into force in Ontario. The Act covers:
- Foreign nationals working as live-in caregivers or looking for work as live-in caregivers
- Those who recruit or attempt to recruit foreign nationals for positions as live-in caregivers
- Those who employ foreign nationals in positions as live-in caregivers
The EPFNA is in addition to the protections that foreign live-in caregivers have under the Employment Standards Act (ESA). Under EPFNA, employers are prohibited from taking or keeping any personal property of the caregivers, including passports, work permits and birth certificates. In addition, an employer that does not use the services of a recruiter must supply the caregiver with an information sheet that sets out her or his rights under the law in the caregiver’s own language. Employers cannot threaten, intimidate or punish anyone for asserting his or her rights under EPFNA or under the ESA.
Likewise, the Immigration and Refugee Protection Regulations regarding the employment of live-in caregivers came into force on April 1, 2010. The provisions aim to help live-in caregivers attain the employment requirement for permanent residence status, provide flexibility in the way the experience requirement is calculated, and improve efficiencies in the medical examination process (and reduce costs for live-in caregivers) by eliminating the second medical examination.
The question is: are these changes working? Given the high incidence of wage theft among foreign live-in caregivers, the answer appears to be no.
What do you think? Are the recent changes to applicable legislation enough, or should something else be done? Is it right for our system to expect migrant workers to bring court actions in order to truly enforce their rights? What can the government do to assist these workers when they enter the caregiver program? What policies and laws could be changed to accomplish this goal?
First Reference Human Resources and Compliance Editor