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Tuesday 22 July 2014
  • French (Fr)
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Hiring a Resident Superintendent PDF Print E-mail

In condominiums of a certain size, it is not uncommon for the syndicate of the condominium to hire a superintendent who will  reside in one of the housing units, specially made ​​available for him, for free or for rent.

The relationship between the syndicate and the superintendent, as any contractual relationship, can cause difficulties, particularly regarding his term. This fact sheet presents the most problematic issues and informs you that it is important to establish with precision and care, in accordance with the law, an employment contract that protects the interests of the syndicate.

Applicability of the Act respecting labor standards

The Act respecting labor standards applies to anyone who works for another, who is providing a service in exchange for remuneration.

Not only the law, but also previous court cases require us to consider, that in most cases, the resident superintendent is considered an "employee", notwithstanding what the contract includes, as this contract can not override the public nature of the Act.

Claim for "work attendance" overtime hours

 the Act Respecting Labor Standards, provides that an employee "is deemed to be at work when available to the employer at the workplace and is forced to wait to be given work".

Under the "presence on the workplace" clause,  some cases, certainly a minority, have already granted building superintendents the right to renumeration.

Thus, the Court of Appeal of Quebec has already granted a claim for extra work to a resident superintendent on the grounds that "in the absence of specific instructions from the employer, the employee was justified in allowing himself to work the number of hours necessary to bring his work to completion."

Salary and Lodging provided

Under the Act Respecting Labor Standards, the "benefit" conferred by the employer in terms of housing provided may not be counted in calculating the salary paid to the superintendent, whether the housing is provided free of charge or for a nominal fee.

An employer paying the superintendent $ 200.00 / week cannot consider that providing free housing worth $ 300.00 / week means he is actually paying the superintendent: 200 + 300 = $ 500.00 / week.

This reasoning is false: the employer is deemed to pay the superintendent $ 200.00 for 40 hours, or $ 5.00 / hour, which is less than the minimum wage of $ 9.00 / hour as of May 1st, 2009 ($ 9,50 / hour from 1st of May 2010).

Paradoxically, for tax purposes, the value of the dwelling must be included in the employee's income and appear on his year end tax statement.

Accommodation Provided and the Departure of the Superintendent

Since the position of superintendent in a building is often accompanied by the provision of accommodation for him, legal issues often arise regarding the liberation of the dwelling by the superintendent who leaves his position within the condominium.

The legislature has enacted specific rules concerning the lease of an ancillary employment contract. The statute thus provides that "the employer-landlord" and "employee-tenant" may terminate the lease unilaterally when the employment contract ends by giving the other party a notice of a (1) month, regardless of the reason for termination of employment (resignation, termination, dismissal ...), unless otherwise specified in the contract of employment.

Note that in case of a dispute, the Rental Board has no jurisdiction to hear the parties as the "lease" is only supplemental to the employment contract. In these cases, common law courts are the only ones who have jurisdiction.

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