Definition : Contract of employment

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...

The management of the staff of the co-ownership involves several responsibilities. If the employer is the syndicate of co-owners, it is the board of directors and sometimes even the condo manager, in his capacity as mandatary of the syndicate, who is competent to give instructions to the employees of the co-ownership. Whether it is the janitor, the caretaker or the gardener, the implications are financial and affect the supervision of the employees. This management must take into account the following elements: recruitment, remuneration, employee performance evaluation, training and occupational health and safety. It must therefore be done rigorously.

A syndicate of co-owners can sometimes evolve into a small and medium size enterprise, an SME. Even more so if it assigns personnel to the various common portions maintenance chores of the immovable. Yet, people hired by a syndicate have rights. In fact, their prerogatives are the same as those in force in the labor market. It is better to be aware of them and to understand the consequences. In addition, the management of personnel within a co-ownership is the responsibility of the board of directors, whether it is the concierge, the security guard, the salaried manager or any other building employee. He is in charge of hiring and dismissal but also of training. He must ensure that the work done by the employees corresponds to the situation of the building knowing that the attributions can evolve over time.

Among the employees of a condominium building, we find the janitor. The latter's main mission is to carry out various housekeeping work in the common portions of the building. He takes care of both the interior and the exterior, the entrance, the hall, the corridors, the stairs and sometimes the garden. He also ensures general surveillance of the building and must report the disorders if necessary. The relationship between the syndicate and the janitor, like any contractual relationship, must be well defined from the beginning, in order to avoid conflicts that can be costly for the co-ownership.  

The qualification of the contractual relationship between the syndicate and the condo manager is of paramount importance since the rules of termination are not the same, whether it is a contract for services or a contract of employment. In most cases, a person working on a regular basis for the co-ownership is deemed to be an employee governed by a "contract of employment", and not an independent contractor. Article 2085 of the Civil Code of Québec defines the "contract of employment" as a contract, verbal or written, 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.  

Whether the condo manager is an employee or a contractor, the relationships and his missions must be defined by a contract. This is more important, given that the work of the condo manager is not regulated by law, as a professional provider. The contract will have the virtue of confirming the mandate, the duration, the fees. As a general rule, it is up to the board of directors to set the guidelines of the management contract, according to the size and characteristics of the co-ownership. As for the terms and conditions of appointment and replacement of the manager, they are generally provided in the constituting act of the declaration of co-ownership.