Quebec Law: A Quebec Decision Addresses An Employer's Ability To Waive Notice Of Resignation

Author:Ms Maria Fernandes
Profession:Borden Ladner Gervais LLP
 
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The March 2013 Quebec Court of Appeal decision of Asphalte Desjardins v Commission des Normes du Travail is a game-changer for employers and employees alike. Employers are no longer bound by the notice period given to them by employees who resign, thus removing their obligation to pay the employee for the duration of the notice period.

The facts of this case are simple and not uncommon. Mr. Guay, who worked intermittently for Asphalte Desjardins for approximately four years, provided his employer with a resignation letter and a three week notice period. The employer decided to waive the notice period provided by Mr. Guay once it had accepted his resignation.

Prior to this case, parties took for granted that, at minimum, the notice required by the Act Respecting labour standards (the "Act") could not be waived by the employer. Faced with a resigning employee that an employer did not want on the premises, the employer had to pay the employee's salary that would have been earned during the notice period.

In Asphalte Desjardins, the Court held that the employer did not have to pay Mr. Guay three weeks of his salary, as sections 82 and 83 of the Act provides for notice or an indemnity in lieu of notice (which varies depending on an employee's years of service) to employees whose employment is being terminated unilaterally by an employer and not in the case of a resignation.

Justice Bich, writing for the majority, held that the reasonable notice provision stipulated in article 2091 of the Civil Code of Quebec ("CCQ") is to the benefit of the person receiving the notice. This is due notably to the fact that resiling from a contract is a unilateral act and because the purpose of article 2091 CCQ is to protect the rights of the co-contracting party. In other words, an employer has no other choice but to accept an employee's resignation and its right to receive such notice. With this contractual framework in mind, Justice Bich concluded that if an employer decides to waive the notice period that accompanies an employee's resignation, the employer is not required to pay the employee for the remainder of the notice period.

This conclusion was reached after an analysis that favoured a contractual approach rather than one predicated on the protection of workers' rights. The Court focused on the ultimate consequence of a resignation and decided that since the...

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