Unjustified change to an employee’s status

When a complaint for an unjustified
change to an employee’s status is filed

The employee’s collaboration is essential for the processing of his complaint. He will have to  provide:

  • his name, address and telephone number
  • the name, address and telephone number of his employer
  • the date when his employment began
  • the date of the change of his status from that of employee to that of self-employed worker
  • a description of his tasks before and after the change.

The complainant will also have to provide:

  • a copy of his pay sheet
  • a copy of his contract of employment
  • his income tax slips.
Service de renseignement

You can file a complaint by telephone at 1-844 838-0808

Reception of the complaint

Here are the different steps in the complaint processing.

Reception of the complaint

Can the complaint be accepted?

The Commission des normes, de l'équité, de la santé et de la sécurité du travail makes sure that the complaint is admissible. A representative gets in touch with the complainant and checks:

  • that he was, prior to the change, an employee within the meaning of the Act respecting labour standards
  • that his employer is subject to the Act respecting labour standards
  • that his employer changed his employee status to that of self-employed worker
  • that he still works for this employer.
When the complaint cannot be accepted

If the Commission des normes, de l'équité, de la santé et de la sécurité du travail considers the complaint inadmissible, it writes to the complainant to notify him that it is putting an end to the process and it explains why. The complainant has the right to apply in writing to the Director General of Legal Affairs at the Commission for a review of this decision within 30 days of receiving  it.

If the review is favourable, the Director General of Legal Affairs follows up on the complaint as soon as possible. Even if the Commission des normes, de l'équité, de la santé et de la sécurité du travail refuses to follow up on the complaint, the complainant can ask to be heard by the Tribunal administratif du travail. He must then apply in writing to the Director General of Legal Affairs at the Commission des normes, de l'équité, de la santé et de la sécurité du travail in the 30 days following the decision. Under these circumstances, no lawyer from  the  Commission des normes, de l'équité, de la santé et de la sécurité du travail will represent the complainant.

When the complaint is admissible

If the complaint is deemed admissible, an inspector-investigator:

  • contacts the complainant to obtain his version of  the facts
  • informs the employer of the nature of the complaint filed and asks him for his version of the facts
  • endeavours to clarify the situation and to gather new elements.

At the end of the investigation, if the Commission des normes, de l'équité, de la santé et de la sécurité du travail agrees to continue its intervention, it sends the complaint to the Tribunal administratif du travail. Only a labour commissioner can decide if the changes in an enterprise justify the change of employee status to that of self-employed worker.

Verification of the facts

Investigation

The inspector-investigator from the Commission examines the version of the complainant and that of the employer. He collects the information that he will need to analyze the situation. He also examines the facts and determines whether or not to follow up on the complaint.

Powers of the inspector-investigator

The investigator mandated by the Commission des normes, de l'équité, de la santé et de la sécurité du travail has the same powers as a member of a commission of inquiry. He can demand proof from the persons in question and summon them to appear before him. He can visit the premises to inspect any relevant element, require information or documents useful for his investigation, meet with witnesses or any other person whose comments may be useful.

Right to review

If the Commission des normes, de l'équité, de la santé et de la sécurité du travail considers that a follow-up on the complaint is unwarranted, it informs the complainant thereof and explains the reasons for its decision. The complainant may then request in writing an administrative review of the decision within 30 days of receiving said notice.

Even if the Commission des normes, de l'équité, de la santé et de la sécurité du travail refuses to follow up on the complaint, the employee can ask to be heard by the Tribunal administratif du travail. He must then submit a written application to the Commission asking it to send his complaint in the 30 days following the decision. In such a case, the Commission des normes, de l'équité, de la santé et de la sécurité du travail does not represent the employee before the Tribunal administratif du travail.

Sending of the complaint to the Tribunal administratif du travail

When the Commission des normes, de l'équité, de la santé et de la sécurité du travail considers that a follow-up on the complaint is warranted and no agreement has been reached with the employer, it sends the complaint to the Tribunal administratif du travail for a hearing before a commissioner. Only the commissioner can determine if the complainant’s change of status from that of employee to self-employed worker was justified.

When the complaint is sent, the case is submitted to a lawyer with the Direction générale des affaires juridiques of the Commission des normes, de l'équité, de la santé et de la sécurité du travail. This lawyer contacts the employee to offer his services and to help the employee prepare. For this purpose, the lawyer may:

  • obtain the complainant’s version of the facts
  • contact witnesses, if any
  • see with the employer if it is possible to arrive at a satisfactory settlement before the hearing.
A few tips for the day of the hearing
  • Dress appropriately: avoid attracting attention or offending others
  • Make sure that you are present in the hearing room before the set time
  • Avoid discussing your  case outside the hearing room
  • When testifying, speak clearly, in a loud voice and with assurance.
  • Pay attention to each question asked
  • Remain calm

The Tribunal administratif du travail has 60 days from the sending of the complaint to its offices to make its decision.