Hiring of staff: employee or independent contractor?


Managing human resources in co-ownerships is a challenge from both a financial and management point of view; flexible working hours, the possibility of working from home and other work-life balance measures are all factors to be taken into account. Unless the directors carry out the housekeeping of the common portions themselves, the syndicate of co-owners will have to employ people such as a janitor, man maintenance, a doorman, a security guard, etc. It should be noted that the possibility of recruiting one of the co-owners is not excluded but can prove to be a complex and delicate situation to manage; this will not be the ideal solution.

Most common qualification: contractual relationship
 
In the majority of cases, a person working on a regular basis or even part-time for the co-ownership is considered to be an employee governed by a contract of employment and not as an independent contractor.
 
Definition of a contract of employment
 
Section 2085 of the Civil Code of Québec defines the contract of employment as being one, verbal or written, by which a person, the employee, undertakes, for a limited time and for remuneration, to perform work under the direction or control of another person, the employer.
 
Characteristics of a contract of employment
 
There are three cumulative conditions for a contract of employment to exist:
  • work performance;
  • remuneration (volunteering excludes any contract of employment);
  • a relationship of subordination.

It is the last condition that makes all the difference between an employee and an independent contractor.

Employee or Independent contractor?
 
Warning: the main criteria are as follows but non of them should be analyzed on their own; each case remains unique:
 
  • economic dependence due to exclusive work on behalf of the syndicate;
  • the existence or absence of a specific work schedule;
  • the supervision or not exercised by the syndicate;
  • the ownership of tools;
  • the possibility of hiring additional labor or adding help;
  • the existence or absence of source deductions (DAS);
  • the possibility of making profits or incurring losses;
  • operating a sole proprietorship registered with the General Inspector of Financial Institutions or incorporating a company.

 

WHAT YOU SHOULD KNOW ! When choosing a new employee, it's essential to assess the co-ownership's needs and draw up a clear job description; it's important to identify both technical skills such as qualifications and experience as well as behavioral skills such as autonomy and the ability to synthesize information.

WHAT TO KEEP IN MIND:​ The board of directors or manager should evaluate an employee's performance some time after he or she has been hired, the objective being to avoid unpleasant surprises.

WARNING! An employee with two years of uninterrupted service in the same company who believes he or she has been dismissed without just and sufficient cause may submit his or her complaint in writing to the Labor standards, equity, health and safety Commission (Commission des normes, de l'équité, de la santé et de la sécurité du travail) (CNESST) within 45 days of his or her dismissal.