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Complaint concerning the right to maintain employee status

Workers may file a complaint with the CNESST if they believe that their employer has unfairly changed their status from employee to independent contractor or self-employed worker or if they disagree with this change.

A worker has the right to maintain their status as an employee. An employer may not change this status to that of a person without employee status if the changes made to the way the company is operated do not justify it.

Even if the contract between a worker and an employer contains a provision stating that the worker is a self-employed worker, they may be considered an employee within the meaning of the Loi sur les normes du travail. For example, under the Act, a salesperson is an employee, since their employer has control over their work.

How the complaints process works

Filing a complaint

A person who wishes to file a complaint can complete the File a complaint questionnaire. If the complaint is admissible, they will be directed to the appropriate instructions for filing an official complaint.

There are several steps in the complaints process. Throughout the process, the person who filed a complaint is asked to cooperate with various CNESST officers, in particular by providing the information and documents requested.

Representation of trainees

Trainees who complete 1 of the following 2 types of training periods may be represented:

  • training period required to obtain a permit to practice issued by a professional order
  • training period that is part of a study program

With their consent, a complaint may be filed on their behalf by:

  • a non-profit student rights organization
  • a pupil or student association
  • a group of pupil or student associations

Important

A complaint concerning the right to maintain employee status must be filed within a reasonable period of time after the status has been changed by the employer and the worker must still be working for the company.

Analysis of the complaint

Once the complaint is filed, a member of the CNESST contacts the worker to verify whether the complaint is admissible. Among other things, they make sure that: 

  • the grounds for the complaint are provided for in the Loi sur les normes du travail (LNT)
  • the worker is an employee within the meaning of the LNT
  • their employer is subject to the LNT 
  • the person has no other recourses under a collective agreement or other act 
  • the complaint was filed within the time limit prescribed by the LNT

If the CNESST can follow up on the complaint, it notifies the worker and checks whether the disagreement can be resolved by communicating with the employer, for example, to explain the standards that apply. If this is not possible, a number of options are provided for to try to resolve the situation.

If the CNESST considers that it cannot follow up on the complaint, it notifies the worker and explains why. If the person disagrees with the decision, they have 30 days to contest it by completing the Request for review of the decision form. The CNESST has 30 days to respond.
 

Important

If the CNESST decides not to follow up on the complaint after investigation, the worker may still request that their complaint be referred to the Tribunal administratif du travail. Under these circumstances, the CNESST will not represent the worker, who will have to secure the services of a lawyer of their choice.

Investigation

The CNESST conducts an investigation to verify the merits of a complaint.

The role of the person mandated to conduct an investigation is to collect, verify and examine the information used to build a complete case in the event of legal action.

At any time during the investigation, the parties may reach an agreement, in accordance with the law, to resolve the situation. The CNESST will then stop its intervention.

The Act respecting public inquiry commissions and the Act respecting labour standards provide specific powers to the person mandated to conduct the investigation. If the person deems it relevant, they may:

  • visit and inspect an employer's workplace or establishment at a reasonable time
  • request information and documents
  • communicate with any person who could provide or verify information

If the investigation shows that the complaint is unfounded, the person who filed the complaint has 30 days to contest the decision by completing the Application for revision of decision form.

If the investigation shows that the complaint is founded, the CNESST refers the complaint to the Direction des affaires juridiques.

Important

If the CNESST decides not to follow up on the complaint after investigation, the worker may still request that their complaint be referred to the Tribunal administratif du travail. Under these circumstances, the CNESST will not represent the worker, who will have to secure the services of a lawyer of their choice.

Transfer of the file to the CNESST’s legal affairs department

Important

A complaint concerning the right to maintain employee status is heard by the Tribunal administratif du travail. The judge has 60 days to render their decision.

Laws and regulations

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