Pierre de Boucherville, lawyer pdeb@ddpqc.ca
Many dentists begin their professional career as associates in another dentist’s private practice. They are then called upon to sign a contract which will confer them an employee or independent contractor status. For most dentists, it is a first contract to sign and some, mistakenly, consider that is a simple formality, when in fact, such a document may have an important impact on their career and even their personal life.
˵I was told that is a standard document, so there shouldn’t be a problem…˶
As most lawyers will reply: Famous last words…
Never take the act of signing a contract too lightly.
There does not exist a standard document which can adequately and objectively cover every situation, and certainly not for a dentist who is facing spending many years of his career working in a practice where he hopes he will manage to harmoniously integrate the existing team and be appreciated by the patients.
You should never forget that a contract is not a substitute for the trust you may have for a person. If relations are good between yourself and your employer, it is possible that everything will be all right. But signing a contract does not guarantee that someone will act towards you the way you wish they would.
In other words, it is better to avoid signing a contract with someone you do not trust. Trust is gained through communication and is earned bit by bit, over time. Take the time to get to know your potential employer before you decide to sign an employment agreement with him.
Another old lawyer favorite is to say that a contract is the first piece of evidence to file during a trial…
A contract protects your rights in a certain manner. This protection is not magical or instantaneous, as it requires an intervention to be activated. Such an intervention may take the form of a simple discussion, a heated negotiation session, a demand letter, of legal proceedings, of a judgment…The quickness of the desired result is certainly not guaranteed as being an element or a result of the contract.
For all future associate dentists: think about the future!
To sign an employment agreement is first and foremost giving one’s consent to the formation of a mutual relation, under which work performed shall be recognized by a certain remuneration and governed by some applicable conditions during and after the life of the working relationship.
Every single one of us has one thing in mind when signing an employment agreement: the salary!
However, the total remuneration an employee shall receive and his working conditions depend on much more than a single element. Of course, salary is crucial, but one should not forget the conditions setting up the remuneration (a fixed or variable salary, guaranteed or not, by day or hour, or production-based, performance bonuses) and also paid holidays, sick days, work schedule (days and hours) and other conditions which may render unattractive any starting salary.
It is also important to distinguish between the employee and independent contractor status. An employee will receive a paycheque from which all governmental tax and other mandatory deductions will have been taken, and will be entitled to a vacation pay ( two weeks’ pay, or 4%) whereas an independent contractor shall receive gross cheques (without any deductions) and will not be entitled to paid vacations.
Be careful! Some contracts which confer the independent contractor status mention that if a governmental authority files a claim as to an improper qualification of a dentist who is legally considered by the authorities to be an employee, the independent contractor will be responsible to indemnify the dental practice who used his services for all the assessments, penalties and costs claimed by the government.
Although attractive at first sight, receiving gross cheques represents a danger rather than a benefit for most people. One must have a lot of discipline to set aside rather than spend the sums due to the provincial and federal authorities! Another factor to consider is that an associate dentist does not have many deductible expenses which might render fiscally interesting receiving gross pay. In most cases, it is probably better to be a salaried employee, for the peace of mind…and the social benefits!
Warning! A simple contract (or its absence) does not suffice to establish your status as an employee or independent professional (or contractor).
As the tribunal ruled in Centres dentaires Lapointe inc. et Commission de la santé et de la sécurité du travail (2013 QCCLP 6388), one must consider, to decide if a dentist is an employee or an independent contractor, article 9 of the Act Respecting Industrial Accidents and Occupational Diseases which states that:
- An independent operator who in the course of his business carries on activities for a person similar to or connected with those carried on in the establishment of that person is considered to be a worker in the employ of that person, unless
(1) he carries on the activities
(a) simultaneously for several persons;
(b) under a remunerated or unremunerated service exchange agreement with another independent operator carrying on similar activities;
(c) for several persons in turn, supplies the required equipment and the work done for each person is of short duration; or
(2) in the case of activities that are only intermittently required by the person who retains his services.
In this case, the dentists, who did not have written contracts (…) with the Lapointe Dental Centers, had to show up according to fixed schedules, and to who the Dental Centers supplied equipment, patients and billing and collection services, were considered as employees, which produced various governmental dues and source deductions to be applied.
Therefore, the absence of written contracts did not manage to fool the authorities, if that was the objective…