QUESTION 1

Express Delivery Inc operates a courier service. For the purposes of its business, it utilizes the services of several drivers.

Drivers are required to own the vehicles they use or otherwise to lease a suitable vehicle. The vehicles have to be a specific type of van and each one costs approximately $30, 000. Drivers are responsible for paying for all repairs, gas, insurance and licences.

Express Delivery bills its customers for the cost of each delivery and keeps 30% of the money it bills. This 30% is for acting as a dispatcher and providing clerical staff responsible for handling paper work. Drivers are paid 70% of the billed amount. This is the case even if the customer does not pay the bill. The drivers are however not paid the 70% if the customer's non-payment is due to a service failure for which the driver is responsible.

Most drivers have an assigned route in a particular geographic area. They have regular customers but can increase their earnings by accepting additional work whenever it becomes available through a paging system. Some drivers are able to earn more than $7000 in commissions in a good month and about $4000 in a bad month.

Express Delivery does not provide drivers with a minimum income guarantee. Drivers can increase their compensation by seeking out new customers, taking on more work and reducing the maintenance expenses associated with their vehicles. They can also do this by choosing the most efficient way of making and coordinating deliveries.

Most of the drivers wear the uniform of the company but as a general rule, it is not a mandatory requirement for them to do so. There are some circumstances however in which it is mandatory for the drivers to wear the uniform of the company. These include cases where drivers are delivering to government offices. In any case in which wearing the uniform is mandatory, the company pays 50% of the cost of the uniform.

Express Delivery is open for business during fixed hours and it is expected that drivers will be available during this time frame. Drivers are however not required to work a fixed number of hours. Once their deliveries were made, the drivers can either go home or agree to accept more deliveries from the dispatcher. Drivers can also decide when, where and in what sequence they do their work, subject to a customer's needs. Drivers are not obligated to make a delivery each time they receive a call from the dispatcher.

Drivers enter into a three-year contract with the company which can be terminated for any "serious breach". Some of the drivers pay a fee to the company at the time they enter into this contract. This fee gives them the "right to provide courier services". Drivers do not do work for other courier companies and occasionally, they use their vehicle to transport items such as furniture. Drivers are able to hire replacement drivers if they themselves are unavailable either because they are away on vacation or are ill. If replacement drivers are hired, the drivers are responsible for paying the replacement drivers.

Express delivery does not deduct taxes etc. from the money its pays to the drivers. Drivers however have the option of joining an insurance plan that offers medical, dental and disability benefits.

Using the 4 part test and the organization test, you are required to analyze the facts presented and make a reasoned determination regarding whether you believe the drivers are employees or independent contractors of Express Delivery Inc