A NEW CIVILIST CONCEPTION OF THE EMPLOYEE

To what extent does the 1994 Civil Code of Quebec include a new concep tion of the employee? Are the thirteen provisions (articles 2085 to 20 97 C.C.Q.) that deal directly with the employee and the employer so di fferent that the legal bases for the employment relationship should be reconsidered? In order to answer such questions, the conception of th e employee as contained in the Civil Code of Lower Canada (1866) must first be referred to here so as to better grasp the significance of am endments made in 1994. Secondly, a critical analysis of these thirteen new provisions allows us to distinguish between what is really new, a nd what appears to be merely updating of the state of the law at the t ime of this codification. In particular, the thirteen provisions of th e Quebec Civil Code can be grouped together under three titles: Specif ic Rights and Obligations of the Employer and the Employee Three oblig ations are clearly imposed on the employer in article 2087 C.C.Q., tha t is, to allow the performance of the work agreed upon, to pay the rem uneration fixed and to protect the dignity of the employee. Furthermor e, the employee is bound to carry on his work with prudence and dilige nce, to act faithfully and to exercise discretion (article 2088 C.C.Q. ). Because the contents of these last terms are so wide-ranging, we mu st find a way to make them explicit if necessary. The Freedom of Agree ment Between Parties Contained in the Civil Code of QuebecAlthough the employment relationship is legally dealt with on the basis of a contr act, the structural imbalance between the parties in this very same co ntract is noted. Thus, the employer may not, for his sole convenience, impose restrictive conditions on the employee's right to work (articl es 2089 and 2095 C.C.Q.), nor may he legitimately require the employee to renounce his right to obtain compensation for an injury that he ma y suffer where the manner of resiliation is hasty or abusive (article 2092 C.C.Q.). Resiliation of the Contract of Employment A contract wit h an indeterminate term may always be resiliated either with simple pr ior notice (article 2098 C.C.Q.), or suddenly and unilaterally, if one party, in particular the employer, has a ''serious'' reason (article 2094 C.C.Q.). It is understood that the practical difficulty is knowin g what may constitute such a serious reason and whether a distinction should be made with the much better known criterion of a ''just and su fficient cause.'' It can be believed that tribunals will be required t o answer these questions and chat in the meantime, there is ample room for debate. It is unfortunate that the Quebec Civil Code does not pro vide elements of answers to the following other two questions: Does th is contract of employment (article 2085 C.C.Q.) continue to exist in t he presence of a collective agreement? What are the legal grounds of t he employer's disciplinary power, in particular for imposing a suspens ion? It should also be noted that the codifiers did not take the new t rends of hiring through an intermediary into account, and that they di d not provide criteria for identifying the real employer. This shortco ming may leave many workers in a precarious legal situation while the party who benefits directly from the work would not qualify as the emp loyer. Making these workers into small entrepreneurs would hardly be a socially equitable and just solution.