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.
Various tasks can be entrusted to the janitor such as household waste management or snow removal. It can also be assigned to cleaning the windows and cleaning the garbage room. The details of his mission should be clearly established in his contract of employment, as soon as he is hired.
Contract of employment
Legally, the syndicate of co-owners is the employer. He must draw up an employment contract by which the janitor undertakes, in exchange for remuneration, to perform work that must be well defined. Although the employment contract may be verbal, it is recommended to do so in writing. It avoids misunderstandings by clarifying, among other things, the working conditions, the duration of the contract and the tasks that the janitor will have to perform.
Act respecting labour standards
In addition to certain general provisions of the Civil Code of Québec, the Act respecting labour standards is the main Quebec law determining the minimum and mandatory working conditions for Quebec employees, provided that they are not subject to federal labour law. This law applies to any person who works for anyone who makes him perform a certain work, for any remuneration.
Employed or self-employed?
It is important to determine whether a worker is an employee or self-employed. Employment status has a direct impact on a worker's entitlement to Employment Insurance (EI) benefits under the Employment Insurance Act. It can also affect how the worker is treated under other laws, such as the Canada Pension Plan and the Income Tax Act. The facts surrounding the entire employment relationship will establish the legal status of the employment relationship. However, it must be recognized that in the majority of cases, the resident janitor is an "employee", notwithstanding what the contract indicates, because this contract cannot prevail over the public nature of the Law.
In co-ownerships of a certain size, it is not uncommon for the syndicate of co-owners to provide the janitor, under the employment contract, with a dwelling located in the co-ownership. This accommodation specially made available to him, free of charge or for rent, offers the co-owners a greater proximity of services. However, this has many implications for both the syndicate and the janitor.
Claim for overtime "attendance at work"
The Act respecting labour standards provides that an employee "is deemed to be at work while available to the employer at the place of employment and required to wait for work to be assigned"
Thus, the Quebec Court of Appeal has already awarded a claim for overtime work to a resident janitor on the grounds that "in the absence of specific instructions from the employer, the employee was justified in devoting to his work the number of hours necessary to complete his task as a janitor."
Under the law, the "benefit" conferred by the housing provided cannot be counted in the calculation of the salary paid to the caretaker, whether the accommodation is provided free of charge or for a small fee.
An employer who pays his janitor $400.00/week cannot consider that by providing him with a free accommodation worth $500.00/week, he is actually paying his janitor: 400+500=$900.00/week.
This reasoning is false, the employer will be deemed to pay his janitor $ 400.00 for 40 hours, or $ 10.00 / hour, which is lower than the minimum wage.
Paradoxically, from a tax point of view, the value of the dwelling must be included in the employee's income and appear on his statement at the end of the year. When a syndicate provides the janitor with a free or subsidized apartment, the value of the benefit corresponds to the result of the following calculation:
Generally, the cost of the apartment is measured at the fair market value (FMV) of the rent for a house or dwelling made available to the employee, that is, the amount he would have had to pay for a similar dwelling if he had rented it from a third party.
In addition, it is common for certain public services to be offered with this dwelling. However, in such circumstances, your board of directors must be advised that depending on the contractual agreement that the syndicate may have with the janitor, that it may result from a taxable benefit to be added to the base compensation negotiated with your janitor.
The departure of the janitor
Since the position of janitor in a building is often accompanied by the provision of housing for him, legal questions often arise as to the release of this housing by the janitor who leaves his job within the co-ownership.
The legislator has enacted specific rules concerning the lease ancillary to an employment contract. The law therefore provides that the "employer-landlord" and the "employee-tenant" may terminate the lease unilaterally when the employment contract ends, giving the other party one (1) month's notice, regardless of the reason for the termination of employment (resignation, dismissal, dismissal, etc.), unless otherwise provided for in the employment contract.
Note that in the event of a dispute, the Administrative Housing Tribunal is not competent to hear the parties, because the "lease" is only an accessory to the employment contract. It is the ordinary courts that then have jurisdiction, if necessary.
WHAT YOU SHOULD KNOW! GOOD TO KNOW! In order to better familiarize yourself with the Act respecting labour standards (LSA), we strongly recommend that you consult the website of the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) at the following address: https://www.cnesst.gouv.qc.ca/fr. This site is of great interest since it contains a detailed interpretation of the main sections of the ALS as well as excerpts from the case law.
WHAT YOU SHOULD KEEP IN MIND: Providing accommodation free of charge to the janitor cannot have the effect of reducing his cash remuneration below the minimum wage. In other words, a set number of hours worked must correspond to a wage paid exclusively in cash and which cannot be lower than the minimum wage.
WARNING! When a syndicate provides housing to a janitor without charging rent or for rent less than the fair market value that the employee would pay on the open market for that unit, the employee receives a taxable benefit to be added to the employee's remuneration. Also a taxable benefit for the janitor is the fact that the syndicate provides certain public services such as telephone, electricity, natural gas, water, cable or internet free of charge.
 Cléroux-Strasbourg v. Gagnon and Lepage,1986 CanLII4513 (QC CA)