L7 - Employment and Service Contracts Flashcards
What is an employment contract?
Definition art. 2085
Contract by which a person, the employee,
undertakes, for a limited time and for remuneration, to do work under the direction or control of another person, the employer
What is a contract of enterprise or for services?
Definition art. 2098
Contract by which a person, the
contractor or the provider of services, as the case may be, 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 to him.
art. 2099
The contractor or the provider of services is free to choose the means of performing the contract and, with respect to such performance, no relationship of subordination exists between the contractor or the provider of services and
the client.
What is a relationship of subordination?
When someone must report to someone else in a workplace. (hierarchy)
How can we determine whether a contract is one of employment, or one of enterprise
Under CCQ?
Under jurisprudence?
Under the CCQ: the distinction lies on the element of of subordination and control
Under jurisprudence: The Sagaz test
What is the main assertion of the Sagaz test?
there is no universal test to determine whether a person is an employee or an independent contractor
Other than the level of control of the employer, what are some factors that help determine if a person is an employee or an independent contractor
- whether the worker provides his or her own equipment,
- whether the worker hires his or her own helpers (Intuitu personae))
- the degree of financial risk taken by the worker,
- the degree of responsibility for investment and management held by the worker,
-the worker’s opportunity for profit in the performance of his or her tasks.
What is special about the exclusivity factor?
It’s used both to assess whether we have an employee or a contractor (1st step)
Then, if contractor, it’s used to determine if we have a dependent or independent one (It’s determinative as it demonstrates economic independence)
If a contractor is exclusive to one employer, than he is deemed dependent of it.
What are the 3 laws governing employment contract?
- CCQ
- Labour Standards Act
- The Quebec Charter
What are the necessary formations for an employment contract?
- Must have legal capacity
- Offer and acceptance
- Voluntary exchange of consent (oral or written)
art. 2086
What are the terms of a contract?
Either fixed, or indeterminate
What are the possible reasons for employment contract termination? (6)
- When fixed contract ends (except for tacit renewal)
- Death of the employee
- By agreement
- By notice
- By superior force
- For good and sufficient cause
art. 2091
How is a notice done to terminate an employment agreement?
Either party to a contract for an indeterminate term may terminate it by giving notice of termination
to the other party.
The notice of termination shall be given in reasonable time, taking into account, in particular, the nature of
the employment, the specific circumstances in which it is carried on and the duration of the period of work.
art. 2093
How can a contract of employment end under death circumstances?
A contract of employment terminates upon the death of the EMPLOYEE.
Depending on the circumstances, it may also terminate upon the death of the EMPLOYER
art. 1470
What is superior force, in the context of an employment contract?
Superior force is an unforeseeable and irresistible event, including external causes with the same
characteristics
art. 2090
What is the tacit renewal of a fixed term employment contract?
A contract of employment is tacitly renewed for an indeterminate term where the employee continues to carry on his work for FIVE days after the expiry of the term, without objection from the employer
art. 2087
What are the employer’s obligations?
The employer is bound not only to allow the performance of the work agreed upon and to pay the remuneration fixed, but also to take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee.
Provide WORK
REMUNERATE
Provide HEALTHY and SAFE environment
Maintain DIGNITY of employees
art. 2088
What are the employee’s obligations?
The employee is bound not only to perform his work with prudence and diligence, but also to act faithfully and honestly and not use any confidential information he obtains in the performance or in the course of his work.
Prudence and Diligence to the best of his abilities
As directed within public order
What is the duty of loyalty?
During employment:
- Be faithful (not harm employer)
- Protect confidentiality
Post Employment:
-Permanent reputation and private info of individuals
- Reasonable time is determined by job responsibilities and balance with need to make a living
art. 2089
Explain the conditions related to the non-competition clauses
The parties may stipulate in WRITING and in EXPRESS terms that, even after the termination of the contract, the employee may neither compete with his employer nor participate in any capacity whatsoever in an enterprise which would compete with him.
However, the stipulation shall be limited as to TIME, PLACE and TYPE of employment, to what is necessary for
the protection of the legitimate interests of the employer.
The burden of proof that the stipulation is valid is on the EMPLOYER.
