Among the employees of the immovable of the co-ownership, we find the janitor; the latter's main mission is to carry out various housekeeping work in the common portions of the building and to take care of both the interior and the exterior, the entrance, the hallways, the corridors, the stairs and the garden. The janitor also ensures general surveillance of the immovable and must report any disorder if necessary; like any contractual relationship, the relationship between the syndicate of co-owners and the janitor must be well defined from the beginning and so, in order to avoid conflicts that can be costly for the co-ownership.
Multiple tasks
Various tasks can be assigned to the janitor such as household waste management or snow removal; he can also be assigned to the cleaning of the windows and the cleaning of the garbage room.
Contract of employment
Legally speaking, the syndicate is the employer and he must draft a contract of employment by which the janitor undertakes, in exchange for remuneration, to perform work that must be well defined; although the contract of employment may be verbal, it is recommended to have it in writing in order to avoid misunderstandings by clarifying notably 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 provincial law determining the minimum and mandatory working conditions for Quebec employees.
Employed or self-employed?
It is important to determine whether a worker is an employee or self-employed because employment status has a direct impact on a worker's entitlement to employment insurance benefits; 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 its legal status; however, it must be recognized that in the majority of cases, the janitor will be considered as an employee.
Service accommodation
In larger co-ownerships, it is not uncommon for the syndicate to provide the janitor a dwelling located in the co-ownership; this accommodation specially made available to him offers the co-owners a greater proximity of services.
Claim for overtime attendance at work
Section 57 of the Act respecting labour standards mentions 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 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."
Salary
The benefit conferred by the provided housing can't be taken into the calculation of the salary paid to the janitor and so, whether the accommodation is provided free of charge or for a small fee.
For example, an employer who pays his janitor $400.00 per week can't consider that by providing him with a free dwelling worth $500.00 per week, he is actually paying his janitor $900.00 per week; this reasoning is false and the employer will be deemed to pay his janitor $400.00 for 40 hours of work, that is to say $10.00 per hour which is lower than the minimum wage.
Taxable benefit
Ironically, 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: the cost of housing minus any payment made by the employee.
In principle, the cost of the dwelling is evaluated at the fair market value (FMV) of the rent for a house or dwelling made available to the employee, that is to say the amount he would have had to pay for a similar dwelling if he had rented it from a third party member.
The departure of the janitor
When the janitor's position in the immovable is accompanied by the provision of making a dwelling available for him, legal questions often arise regarding the release of this housing by the janitor who leaves his job within the co-ownership.
The legislator has put in place specific rules concerning the accessory lease to a contract of employment; so, unless otherwise specified in the contract, the law therefore states that the employer-landlord and the employee-tenant may terminate the lease unilaterally when the contract of employment ends giving the other party one month's notice and so, regardless of the reason for the termination of employment (resignation, dismissal, etc.).
Note that in the event of a dispute, the Administrative Housing Court (Tribunal administratif du logement) is not competent to hear the parties because the lease is only an accessory to the contract of employment; it is the general courts that have jurisdiction in such case.
WHAT YOU SHOULD KNOW! In order to better comprehend the Act respecting labour standards, it's important to consult the website of the Labour standards, equity, health and safety Commission (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/en/client-services/contact-us; this site is of great interest since it contains a detailed interpretation of the main sections of the Act respecting labour standards as well jurisprudence sections from the case law.
WHAT TO KEEP IN MIND: Providing dwelling accommodation free of charge to the janitor can't have the effect of reducing his salary below the minimum wage.
WARNING! When a syndicate provides housing to a janitor without charging rent or for a minimal amount than the fair market value that the employee would pay on the open market for that dwelling, the employee receives a taxable benefit that has to be added to his remuneration; also, the fact that the syndicate provides certain public services such as telephone, electricity, natural gas, water, cable or internet free of charge constitues a taxable benefit for the janitor.
