Contract of Employment

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Contract of Employment: Civil code has ~3300 articles, contains all civil/general laws of Quebec. Contract[1] of Employment is a portion of the code.

[2085] “what it’s all about.” An employee:

Contractor: No direction and control,[2] contractor sets his own daily schedule, vacation schedule, provides his own tools (e.g. computer), is able to subcontract work. o e.g. lawyer: is hired as an agent/agency, does not direct/control

• Important to specify between the two: employees have deductions withheld at source, contractors do not • EER’s can be fined (and EEE’s assessed) if EER mislabels an EEE as a contractor and fails to withhold deductions

[2086] contract can be for a fixed period of time or indefinite (open-ended)

[2087] Obligations of the EER to the EEE:
1. To provide the work
2. To pay for the work
3. To protect the health, safety (e.g. protective clothing), dignity of the EEE

[2088] Obligations of the EEE to the EER
1. work with prudence[3]/ diligence[4]
2. work faithfully/ honestly (i.e. won’t lie, place EEE interests ahead of EER) 3. protect confidential info (“a proprietary right”) • All employee sanctions stem from this
• Extends for a reasonable amount of time after employment ends • “The fiduciary duty” = trust
• “Obligations of Trust” = the trust that one has in his significant other

[2089] Non-competition clause
• If you leave/ fired for a reason there can be prohibitions on where you can work • The Shake Test: 5 steps to proving validity of a non-competition clause (the answer to each step must be “yes” for the clause to be valid; burden of proof on EER) 1. Is it in writing? (cannot be verbal)

2. Does it specify time/ place/ type of employment?
3. Does the EER have a “legitimate” reason to protect? (can you damage the EER by using knowledge gained?) ▪ Burger flipper = EEE talent
▪ Game developer = EER paid for EEE to develop intellectual property 4. Are the limitations from (3) reasonable?
▪ E.g. appropriate place? (North America covers a lot of ground) ▪ E.g. time? (one year is not reasonable if lifetime of software is ≤ six months) ▪ E.g. type of employment?

5. [2095] If you’re fired without cause cannot invoke a non-competition clause:

[2090] Implied renewal of employment contract within five days of contract expiry date • After five days contact is extended indefinitely

[2091] indeterminate term: either side can end at any time providing reasonable notice is given, don’t need cause o Reasonable notice depends on:
▪ Precedent
▪ How long has EEE been on the job
▪ What the EE was doing while he was there

[2092] You can get indemnity[5] in lieu of reasonable notice • you can’t waive your right to deserved indemnity if the length of time for the notice wasn’t reasonable or the compensation was insufficient • (i.e. your EER can’t make you sign a paper saying that you won’t sue for more appropriate compensation)

[2093] When EER dies, if the business continues on then the EE’s contract continues on

[2094] Serious reason
Obligations breached

• How to terminate a fixed term contract?
• Pay off contract (if no serious reason)

[2096] Limits the info released by the EER on the EEE
• Certificate of employment
o Showing Nature and Duration of employment
o Identities of the parties

[2097] EEE’s contract is still in effect after a buyout, etc. (“binding on successor”)

[1463] EER is responsible for EEE’s damages
• For the EER to be responsible, must prove:
1. person is an EEE (as per [2085] – EER directs and controls person) 2. person is at work at the time of the injury
• “vicarious liability”

[1621] punitive damages calculation
Amount may...
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