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Employment law
Introduction
The majority of Canadians are employees rather than contractors or they are employed in
the service of one provider of work. As such employers exercise a considerable degree of control
over the lives of employees. By contrast, independent contractors often service multiple workproviders and are less likely to be heavily controlled by the employer. The notion that employers
generally enjoy considerable control over employees has been clarified in the case of PointeClaire vs Quebec where it has been specified that employees are legal subordinates of employers.
Because employers enjoy superior bargaining power to that of employees, the basic principles
governing employment contracts prevent employers from abusing this power.
Tests determining who is an employee
As a general principle, employers tend to exercise a considerably higher degree of
influence over their employees than over their contractors. Consequently, employees are more
likely to display a financial dependence on their work-providers than independent contractors.
By the same token, employees tend to play an essential role in the life of the business in question
and they tend to spend nearly all of their time servicing their employer. Conversely, contractors
often service multiple work-providers. In general, most accounts of the distinction between
contractors and employees tend to overlap with respect to these key points.
However, variations exist with respect to how authors have previously distinguished
between these two positions. “It has been suggested that a fourfold test would in some cases by
more appropriate, a complex involving (1) control; (2) ownership of the tools; (3) chance of
profits; (4) risk of loss.” (Filsinger, 2010, P.5). For example, a fourfold test has been suggested
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as a criterion for drawing this distinction including control, ownership of tools, chances of profits
and risks of loss. By definition, employers tend to exercise considerably more control over
employees than subcontractors, employees are more likely to use tools that are owned by the
company and are more likely to be closely involved with its operations. Consequently,
employees generally have a higher chance of profits than contractors because the security of their
position is directly tied to the success of the enterprise. By the same token, they are generally
exposed to a much greater risk of loss than contractors because the failure of the organization
commonly leads them to lose their positions as well. By comparison, contractors generally have
opportunities to find work from other providers; their financial situation is not as closely linked
to that of the organization. “One feature which seems to run through the instances is that under a
contract of service, a man is employed as part of the business; whereas under a contract for
services, his work, although done for the business is not integrated into it, but is only an
accessory to it.” (Filsinger, 2010, P.5). Another essential characteristic that distinguishes an
employee from a mere contractor is that his work generally plays an essential role in the business
while the work of a contractor is generally a supplement to the business.
Additionally, the business-owner’s control over the employee is exercised in light of the
premise that employees generally provide services to one employer. “A person works
exclusively for one employer it indicates employee status; a person who regularly provides
services for many different employers more closely resembles an independent contractor.”
(Filsinger, 2010, P.6). By contrast, contractors typically provide services to a broad range of
clients who are often of equal importance. “Usually, an employee will perform the work
personally, while an independent contractor may delegate the work to employees or even to
outside subcontractors.” (Filsinger, 2010, P.6). By definition, an employee is an individual who
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personally completes all of the assigned tasks. By contrast, contractors could consist of multiple
organizations that offer services to the work-provider.
Reference Page
Filsinger, K.J. (2010) Employment Law for Business and Human Resources Professionals, 2nd
edition. Toronto: Emond Montgomery Publications Limited.
Pointe-Claire vs La Ville de Pointe-Claire (1997) 1 C.S.R.
Khan,A Historical Roots of Employment law
Province of Alberta (2013) Alberta Human Rights Act.