Class 7 Flashcards
What is a contract of employment?
Contract by which a person, the employee, undertakes, for a limited time and for remuneration, according to the instructions and undernthe direction or control of another person, the employer
What is a contract of enterprise?
Contract by which a person, the contractor, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service for a price which the client binds himself to pay him
The contractor is free to choose the means of performing the contract and no relationship of subordination between the contractor and the client
What are the factors that determine if a person is an employee or an independent contractor?
- Subordination and control: employee is a subordinate, contractor is not
- Tools and equipment: Employer gives equipment to employee and contractor brings their own
- Intuitu personae: Worker hires their own helpers
- Degree of financial risk taken by the worker
- Degree of responsibility for investment and management held by the worker
- Opportunity for profit in the performance of their own tasks
What laws govern the employment contracts?
- CCQ
- Labour standards act
- Quebec Charter
What aspects fall under the employment contract?
- Paid: employee must be payed
- Bilateral contract: each party has an obligation to complete
- Intuitu Personae: employee must personally carry out the work
- Subordination: Control by employer
What is the formation of employment contract?
Must have legal capacity
Offer and acceptance
Voluntary exchange of consent
Oral or written
What can be the term of the employment contract?
Fixed
Indeterminate
How does the employment contract terminate?
When the fixed contract ends (exception of tacit renewal)
By agreement
By notice
Death of employee
Superior force
Good and sufficient cause
What is tacit renewal of fixed term contracts?
A contract of employment is tacitly renewed for an indeterminate term where the employee continues to carry on his work for 5 days after the expiry of the term, without objection from the employer
What are employer obligations
- Provide work
- Remunerate
- Provide a healthy and safe environment
- Maintain dignity of employees
What are employee obligations
- Work: with prudence and diligence, and as directed within public order
- Loyalty (during employment): be faithful (nothing to harm employer) and protect confidential information
- Loyalty (after employment): reasonable time (determined by job responsibilities and balance with need to make a living) and permanent (reputation and private information of individuals)
What are the conditions of non-compete clauses?
Must be written/express
Employer has the burden of proof
Reasonable restriction on: work limitations, territory restriction, time restriction
