Former caregiver wins severance pay in rare temporary foreign worker lawsuit
Former caregiver wins severance pay in rare temporary foreign worker lawsuit
By
VANCOUVER—When Ms. Ortiz arrived in Canada, she had already been away from her three young daughters for six years, working in Hong Kong as a live-in nanny.
With that experience on her resume, she planned to work in Canada as a nanny until she could apply for permanent residency and bring her kids over. Canada, she hoped, would mean a better life for her children.
Soon after she arrived under the now-defunct live-in-caregiver program, Ortiz found she had to fight to stay here — an ordeal that included her arrest and an ensuing legal battle with her former employer.
Earlier this month, a B.C. court ordered the former employer to pay Ortiz seven months’ wages in severance. The decision means employers of migrant caregivers, who are rarely taken to court, could face legal consequences if they violate employment contracts.
Ortiz hopes it will also inspire other migrant workers to follow in her footsteps.
“I want them to be brave and fight for all your rights as a nanny,” she said in an interview with StarMetro on Tuesday. “Just don’t let them ruin your life.”
Ortiz found a job as a nanny in Canada in late 2014 and arrived in Vancouver under a live-in-caregiver work permit. But when she got here, the employer told her she was no longer needed, which made Ortiz’ work permit invalid.
So, on the advice of a family member, she looked for another job in Canada, even though her permit only allowed her to work for the family she was initially hired by. This led to her being hired as a nanny by Vancouver woman Sandy Shokar, who runs the diamond dealership Diamond Deals.
Their arrangement was “under the table,” since Shokar needed a nanny right away, Ortiz needed a job, and the application for hiring Ortiz, which Shokar submitted, would take months to process.
It was a good job, Ortiz said: Shokar and her husband were kind and “the son, he was really a lovely boy. We get along really good. Even if it was my day off he’d still look for me.”
But before Shokar’s application to hire Ortiz came through, the Canadian government began a crackdown on foreign nationals who were in the country on invalid work permits. That’s when Canada border service agents came to Ortiz’s door and arrested her.
“They looked like police to me,” Ortiz said. “I just didn’t know what to do. I just tried to work for my kids — that’s all. I didn’t do any crime.”
The agents took Ortiz in a black car to an immigration holding centre where she spent the night.
Three days after the arrest, Sandy Shokar took Ortiz’s name off her application to hire a foreign-national nanny. Months later, according to court documents, Shokar told Ortiz: “This isn’t going to work.”
“I thought this is the end of it — I’m going to go back to the Philippines,” Ortiz said. “I can’t fight for it anymore.”
With help from the Migrant Workers’ Centre, a not-for-profit agency that advocates and provides legal support largely for caregivers, Ortiz sued Sandy Shokar, claiming she had been fired without cause and was owed severance.
A B.C. court ruled May 2 that Sandy Shokar fired Ortiz without cause. Ortiz was awarded seven months’ pay, at a rate of $10.50 per hour.
It was a rare case that dealt with the question of what employers are obligated to do when they terminate migrant workers employed in their homes.
But before Sandy Shokar’s application to hire Ortiz came through, the Canadian government began a crackdown on foreign nationals who were in the country on invalid work permits. That’s when Canada border service agents came to Ortiz’s door and arrested her.
Temporary foreign worker recently won a lawsuit against her former employer for wrongfully firing her after because she was arrested for having an invalid work permit. (JESSE WINTER / STARMETRO)
Temporary foreign worker recently won a lawsuit against her former employer for wrongfully firing her after because she was arrested for having an invalid work permit. (JESSE WINTER / STARMETRO VANCOUVER)
“They looked like police to me,” Ortiz said. “I just didn’t know what to do. I just tried to work for my kids — that’s all. I didn’t do any crime.”
The agents took Ortiz in a black car to an immigration holding centre where she spent the night.
Three days after the arrest, Sandy Shokar took Ortiz’s name off her application to hire a foreign-national nanny. Months later, according to court documents, Shokar told Ortiz: “This isn’t going to work.”
“I thought this is the end of it — I’m going to go back to the Philippines,” Ortiz said. “I can’t fight for it anymore.”
With help from the Migrant Workers’ Centre, a not-for-profit agency that advocates and provides legal support largely for caregivers, Ortiz sued Shokar, claiming she had been fired without cause and was owed severance.
A B.C. court ruled May 2 that Shokar fired Ortiz without cause. Ortiz was awarded seven months’ pay, at a rate of $10.50 per hour.
It was a rare case that dealt with the question of what employers are obligated to do when they terminate migrant workers employed in their homes.
Filipino Nanny WINS lawsuit against Sandy Shokar West Vancouver Diamond Merchant!
The two-day public trial Court Case was November 14th and 15th 2017 at Robson Square Provincial Court. The May 02, 2018 “Reasons for Judgement of the Honourable Judge Howard” is 30 pages! Yes, it took almost 6 months to get the final report. The case was quite complicated.
The Honourable Judge Howard report states the Filipino Nannies statement to the court was “a timid witness.. with “no significant internal conflicts in her testimony” and “was quite persuasive”
In stark contrast, the Court report states Sandy Shokar time on the witness stand was “far more problematic… and evasive.” Also, The Honourable Judge Howard reports Sandy Shokar “also had a tendency to give multiple answers to the same question, and the answers were not always consistent.”
Also, the Judges Court report states on various issues Sandy Shokar was as follows:
“utterly unpersuasive” [42]
“not credible and I reject that assertion” [44]
“lack of cantor on Ms. Shokar’s part is of concern to me” [50]
“inconsistent” [51][/three_fourth_last]
Sandy Shokar and her company “Diamond Deals” / Phera Diamonds, Jewelry Stores is being sued for $35,000+ Court date Nov. 14-15, 2017
Furthermore, Judge Howard states “I have concluded that the testimony of Ms. Shokar was both internally inconsistent at times and, in some issues, inconsistent with the totality of the circumstance of the case… (and) was not credible” [51]
Some interesting statements during the trial Sandy Shokar admitted to illegally hiring a Nanny without a valid work permit.
This Court Wrongful Dismissal case raises some major repercussions for untrue and defamatory statements made on Social Media specifically personal and business Facebook posts against the Filipino Nanny. During the 2-day trial, Sandy Shokar admitted the Facebook statements were untrue. Ms. Shokar stated the Facebook posts were made by her ex-husband Major.
This Court case is making Case Law and is the first in Canada involving a Filipino Nanny suing an employer for Wrongful Dismissal. More importantly, the Filipino Nanny won!
In conclusion, the Judge Howard report states “Accordingly, I find that the Service Canada Contract was breached by Ms, Shokar and that she is liable for damages for that breach.” [74]
Stay Tuned! Lots more Info to follow!
Sandy Shokar and her company “Diamond Deals” / Phera Diamonds, Jewelry Stores is being sued for $35,000+ dollars for wrongful dismissal!
