The janitor of your co-ownership: employee or self-employed?

November 18, 2021- When it comes to hiring labour in a co-ownership, many directors think that it would be simpler and less expensive if it were provided by contract that the janitor, for example, would be considered a "self-employed".

By doing so, it would not be appropriate to deduct deductions for tax purposes, or contributions to Employment Insurance or the Québec Pension Plan (QPP) at source.  In addition, it is believed that this avoids red tape and contributions to the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST). In short, it costs less and everyone is happy...

This is part of this mentality, lame but still too widespread, that we must limit the common charges as much as possible.

However, at the risk of disappointing some, be aware that in the vast majority of cases, this is a serious error because the person thus hired almost always retains an "employee" status, regardless of the terms used in the contract, whether written or verbal. She thus benefits from all the rights and remedies provided for in the Act respecting labour standards  and the Act respecting industrial accidents and occupational diseases, as soon as the characteristics of an "employee"  are present:

• work performance;
• remuneration;
• the existence of a relationship of subordination (supervision, rules of conduct, working hours and operating environment are established by the employer; exclusive service, ownership of tools and equipment by the employer, economic dependence and no risk of loss for the worker).

As agents of the syndicate, the directors have the obligation to act in the best interests of the principal, that is, the syndicate of co-owners, with prudence and diligence, honesty and loyalty. This involves complying with an employer's obligations under labour laws. If you fail to follow them, there could be consequences, especially when an employment is terminated, while the so-called "self-employed" could claim employee status and claim to have been dismissed without just and sufficient cause, or claim weeks of termination indemnities, among others.

Bob Dylan sings "to live outside the law, you must be honest...", in the song entitled "Absolutely Sweet Marie". I will go a little further and say 'so follow the rules of law and do not try to circumvent the system. It's rarely a good idea..."

Richard LeCouffe, Lawyer

Therrien Couture Joli-Cœur S.E.N.C.R.L

1100, boul. René-Lévesque O.,
Bureau 2000
Montréal (Québec) H3B 4N4

Tél. : (514) 335-9595 / 855 633.6326

[email protected]