Session 7 Flashcards
What is an employee?
Contract by which a person (employee) does work under the direction/control of another person for a limited time and for pay (CCQ)
- Each party has an obligation (bilateral contract)
- Employee must personally carry out the work
- Subordinated and receives $$
What is an independent contractor?
contractor undertakes a physical, intellectual work or supply a service for a price and for a client
Contractor is free to choose the means of performing the contract and no relationship of subordination exists (CCQ)
How do you distinguish between an employee or independent contractor?
The key is looking at the element of subordination or control (CCQ).
However, jurisprudence has implemented tests (SAGAZ)
1. Key factor = subordination and control
Employee → subordinate to the employer
Contractor → not subordinate
Other factors
2. Intuitu personae
Employee → must perform work herself/himself
Contractor → not obligatory, can hire others
(Affects the level of risk taken on by the contractor)
- Tools & equipment
Employer → provides to employee
Contractor → provided by contract
Why is the distinction between contractor and employee important?
- Responsibilities for the employer change depending on whether they are an employee or contractor
- Taxes, certain deductions for independent contractor
What laws govern employment contracts?
- CCQ
- Act respecting labour standards
- Act of legal rights and freedoms
What are the requirements for forming an employment contract?
- Legal capacity (14+ or approval from guardian)
- Must be a valid offer and acceptance (voluntary consent)
- Oral or written (written is preferable to have a record)
What is the term for an employment contract?
Fixed: specified date
Indeterminate: no set end date
How does termination of employment contract?
CCQ
- Tacit Renewal: If employee continutes to carry on their work five days after the expiry date, without objection from employer
- By notice: Need to give notice for indeterminate term, with reasonable time. Must think of circumstances and duration of the period of work and nature of work
- Death: Might terminate in death of employer (e.g. sole prop)
- By superior force: Can terminate if supeior force. e.g. factory you work in burns down, Covid used to be a reason but it is no longer valid.
- Good or sufficient cause: Serious reason to terminate (e.g. steal 50k from company, they can fire you without notice)
What are the employer obligations in employment contract?
- Provide work (the same as what was agreed upon)
- Remunerate
- Provide healthy/safe conditions (Charter of human rights and freedoms)
- Maintain dignity of employees (Charter)
- Provide tools and materials necessary to perform the work
- Provide work place and make it accessible
What are the duties of employment from the employee?
- Work (with prudence and diligence to the best of abilities)
- Duty of loyalty during employment: do nothing to harm employer, Protect confidential info, avoid conflicts of interest, cannot use employer’s information
What is duty of loyalty for employee?How does it change after employment?
Obligation to maintain private information continues, must be a reasonable time (determined by job responsibilities and balanced with need to make a living. Post-employment duty is less than when you are working there.
Permanent: reputation and private information
What are non-competition clauses?
- Must be in writing
- burden of proof on employer (standard is balance of probabilities)
- Reasonable restrictions on: Work limitations, territory restrictions, time restrictions - Courts dont like enforcing these
- does allow employee to contribute to society
- limits individual
- if any part is unreasonable, they dont rewrite, they strike the whole thing
What is the act respecting labour standards?
- product of national assembly (quebec)
- amended many times
- sets minimum employment conditions
Why are employment standards important?
- Correct for power imbalances between employers and employees
- Feared that without legislation, employees would face bad working conditions (long hrs, bad pay, unsafe)
Why is the Act respecting labour standards in place (why cant they just figure it out themselves?)
- Abuse of power (some employees dont know what they should be asking for
- Presumption that prospective employees arent as sophisticated as their employers. therefore need to protect employees
