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, if a salesperson is considered to be a self-employed worker in their employment contract, they could be considered to be an employee under the Act if the employer has control over their work, including deciding what tasks they must do and when they must be done.
How the complaints process works
Filing a complaint
A person who wishes to file a complaint relating to the maintenance of employee status may contact us by telephone.
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.
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
The CNESST assigns the complaint to a lawyer if no action has succeeded in resolving the situation. The person who filed the complaint does not have to pay any fees when they are represented by a CNESST lawyer.
- They may also choose to be represented by a lawyer of their choice, at their own expense.
- The court sets the date for the hearing. This means that wait times for a hearing can vary.
- The situation may be resolved at any time before the hearing. If an agreement is not reached, the parties will be heard by the judge.
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.