Canada: Doing Business In Québec From An Employment And Labour Law Perspective - A Review Of The Principal Features Of The Legislation

INTRODUCTION

In Québec as in other Canadian provinces, laws dealing with employment matters come within the jurisdiction of the local legislature (called the "National Assembly" in Québec), except where employment in a work or undertaking falls within one of the heads of federal law-making power of the Parliament of Canada. The latter include aeronautics, shipping and navigation, longshoring (stevedoring) activities, national railways, banking, inter-provincial and international bus and transport companies, radio and television broadcasting, cable TV and other forms of telecommunications, operations which are declared to be for the general advantage of Canada or two or more provinces (such as grain elevators and nuclear facilities) and any other business which is an integral and essential part of a federal work or undertaking.

The federal Parliament has exclusive jurisdiction over employment insurance benefits and bankruptcy, whereas workers' compensation is a provincial matter.

Distinct federal and provincial legislation and regulations exist governing minimum labour standards, collective bargaining, occupational health and safety, human rights, collective dismissal, pay equity, protection of personal information, pension plans and successor rights and obligations, all of which provisions apply separately to federally and provincially-regulated employers.

Since this document provides only an overview of Québec's provincial legislation and regulations, employers operating in Québec, or contemplating carrying on business in Québec, should consult with their professional advisors to determine their specific rights and obligations under applicable statutes and regulations. Employers falling under federal jurisdiction should exercise particular care, as many of the statutes and regulations reviewed in this paper do not apply to them.

INDIVIDUAL CONTRACTS OF EMPLOYMENT

Individual contracts of employment are generally governed by the Civil Code of Québec. A contract of employment, whether it be oral or in writing, is defined as a contract by which the employee undertakes to do work for remuneration, according to the instructions and under the direction or control of the employer. It is to be distinguished from a contract of services, under which the contractor or provider of services (often a consultant) is free to choose the means of performing the contract and under which no relationship of subordination exists between the contractor or the provider of services and the client.

Under a contract of employment, the employer is bound not only to allow for the performance of the work and to pay the remuneration agreed upon, but he must also take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee.

The employee is bound not only to carry on his work prudently and diligently, but he must also act faithfully and honestly and not use any confidential information he may obtain in the course of his work.

The parties may stipulate in writing and in express terms that, even after the termination of the contract, the employee may neither compete with his employer nor participate, in any capacity whatsoever, in an enterprise which would then so compete. Such a stipulation must be limited, however, as to time, place and type of activity, to whatever is necessary for the protection of the legitimate interests of the employer. An employer may not avail himself of a non-competition covenant if he has terminated the contract without a serious reason (without cause) or if he has himself given the employee such a reason for terminating the contract (constructive dismissal).

Contracts of employment are either for a fixed term or an indeterminate term. A fixed-term contract will be tacitly renewed for an indeterminate term where the employee continues to carry on his work for five (5) days after the expiry of the term without objection by the employer.

Employees may be terminated for cause without notice or indemnity.

Subject to certain very important statutory exceptions, employees may be terminated without cause by giving prior notice of termination or paying a compensatory indemnity in lieu thereof. The notice of termination must be reasonable, taking into account, in particular, the nature of the employment, the special circumstances in which it is carried on and the duration of the period of work. Under a fixed term contract, the notice requirement is the unexpired portion of the term (e.g. in a severance provided for in an employment agreement).

An employee may not renounce in advance his right to obtain compensation for any injury he suffers where insufficient notice of termination is given or where the manner of termination is abusive. Therefore, even though the length of notice may be determined by the employment agreement, a tribunal may consider that the notice provided is not reasonable. There are no set guidelines to determine what is a reasonable notice. However, Quebec case law recognizes that notice between one (1) to four (4) weeks per year of service, with a maximum threshold from twelve to eighteen months should be provided depending on the aforementioned situation. Note also that notices usually range from one (1) to two (2) weeks per year of service for first line employees and from two (2) to three (3) years of service for managers.

Moreover, an employee whose employment has been terminated has an obligation to make reasonable efforts to obtain alternative employment in order to mitigate his damages. Any income which an employee may derive or should have derived from alternative employment cannot be used to reduce the employer's mandatory minimum obligation under the Québec Act Respecting Labour Standards, but may be used to reduce the employer's obligation to provide reasonable notice or pay in lieu of notice under the Civil Code of Québec.

In certain circumstances, the Civil Code of Québec also provides for the annulment or the reduction of any obligation arising from an abusive clause in an employment contract when the essential stipulations are imposed by the employer and are not negotiable by the employee.

The parties may not contractually stipulate severance arrangements below Civil Code requirements, even in the context of a settlement or release upon termination.

EMPLOYEE DEDUCTIONS / EMPLOYER CONTRIBUTIONS

Income tax

Employers are required to make deductions at source from the earnings of their employees for taxes imposed under the federal and provincial income tax acts. They are also required to have employees complete separate TD1 and TP-1015.3 forms which provide the information that determines the status of an employee for income tax purposes.

Québec Pension Plan

The Québec Pension Plan Act provides retirement pensions for contributors as well as survivors' benefits for widows and dependent children of contributors who die. It also provides certain disability benefits. This pension plan is compulsory. Québec residents do not participate in the federal Canada Pension Plan. Employees, employers and self-employed individuals are required to contribute. For the year 2012, each employer must deduct and remit 5.025% of each employee's wages, to a maximum annual contribution of $2,341.65, and contribute an equal amount on its own behalf. The contribution rate and both the employer's and the employee's maximum contribution are subject to change on a yearly basis. The employer's contribution is deductible for income tax purposes as a normal business expense.

Québec Health Services Fund

Québec provides free, comprehensive health care to its residents. This includes coverage for doctors and hospital services. All employers in Québec are subject to an employer health tax. The employer health tax is levied at a rate between 2.7 and 4.26% on the gross amount of wages and benefits (i.e. the gross remuneration) received by employees who either report for work at a permanent establishment in Québec or are paid from a permanent establishment in Québec.

Employment Insurance

The Employment Insurance Act requires an employer to make contributions based on the earnings of all employees, subject to certain exceptions. The contributions are made to the Employment Insurance Account maintained by the Government of Canada, from which unemployed insured contributors may draw benefits. Generally, each employer must deduct and remit 1.47% of each employee's wages, up to a maximum annual premium of $674.73 (in 2012), and itself contribute an amount equal to 1.4 times the employee's premium for the pay period. The employer's contribution is deductible for income tax purposes as a normal business expense.

An employer's premium can be reduced when it maintains a wage-loss plan that reduces employment insurance benefits payable in respect of unemployment caused by illness or pregnancy.

Other Deductions and Contributions

Employers are also required to make other deductions at source, including deductions under the Quebec Parental Insurance Plan. The reader is invited to consult the "Guide for Employers: Source Deductions and Contributions" published by "Revenu Québec" and available on the Revenu Québec website, for up-to-date information.

SOCIAL INSURANCE CARD

All persons 18 years of age or over who are employed in pensionable employment must obtain a Social Insurance Number ("S.I.N.") and a S.I.N. Card from Service Canada for the purpose of contributing to either the Québec or the Canada Pension Plan.

Every employer who employs an employee in pensionable employment shall require the employee to produce his S.I.N. Card within thirty days of the start of his pensionable employment.

Every employer must maintain a record of the S.I.N. of each employee.

DEVELOPMENT OF MANPOWER TRAINING

An Act to promote workforce skills development and recognition requires every employer whose total payroll for a calendar year exceeds $1,000,000 to provide manpower training by allotting an amount representing at least 1% of his total payroll for the year to eligible training expenditures.

An employer whose total eligible training expenditures for a year are less than 1% is required to pay the difference into the Fonds de développement et de reconnaissance des compétences de la main-d'oeuvre (i.e. the Workforce Skills Development and Recognition Fund).

MINIMUM LABOUR STANDARDS

The Act Respecting Labour Standards ("Labour Standards Act") sets out the minimum working conditions in Québec. Naturally, a collective agreement or individual contract of employment may provide for better working conditions. This law is of public order and any agreement contrary to the provisions of the Act or providing for inferior working conditions is null and void. To provide for the funding of the administration of the Act, every employer is required to pay the Minister of Revenue an annual contribution of 0.08% of all the wages subject to contribution which he pays or is deemed to pay in respect of a calendar year. The following is a summary of the minimum working conditions under the Labour Standards Act.

Minimum wage

The minimum hourly wage in Québec has been set at $9.65 effective May 1, 2011. It will increase at $9.90 effective May 1, 2012. Employees in the restaurant and hotel sector who usually receive gratuities are entitled to a minimum rate of $8.35 per hour, which will increase to $8.55 effective May 1, 2012. It should be noted that the minimum wage does not apply to an apprentice who participates in an apprenticeship program nor to an employee remunerated entirely on commission who works outside the employer's place of business and whose working hours cannot be controlled.

Equal wage rate and vacation benefit for part-time employees

Unless a part-time employee is paid more than twice the minimum wage, it is prohibited to remunerate him or her at a lower wage rate than that paid or granted to full-time employees performing the same tasks in the same establishment, for the sole reason that the employee works part-time.

Payment of salary

Wages must be paid in cash or by cheque in a sealed envelope. The payment may be made by bank transfer provided the employee agrees to it in writing. Wages must be paid at intervals of not more than 16 days, or one month in the case of managerial personnel.

However, any bonus or overtime earned during the week preceding payment of the wages may be paid with the subsequent payment.

Pay sheet

The employer must remit to the employee, together with his salary, a pay sheet which must include:

• the name of the employer;
• the surname and given name of the employee;
• the identification of the employee's occupation;
• the date of the payment and the work period corresponding to the payment;
• the number of hours paid at the prevailing rate;
• the number of hours of overtime paid or replaced by leave with the applicable premium;
• the nature and the amount of the bonuses, indemnities, allowances or commissions that are being paid; the wage rate; the amount of wages before deductions;
• the nature and the amount of the deductions made;
• the amount of the net salary paid to the employee;
• the amount of the tips reported by the employee; and
• the amount of the tips the employer has attributed to the employee.

Register

The employer must maintain a register indicating the name, surname, residence, social insurance number, occupation and date of hiring of each employee, as well as the following particulars for each pay period:

• the number of hours worked per day;
• the total of hours worked per week;
• the number of overtime hours worked;
• the number of days worked per week;
• the wage rate;
• the nature and the amount of the bonuses, indemnities, allowances or commissions that are being paid;
• the amount of the gross salary;
• the nature and the amount of the deductions;
• the amount of the net salary paid to the employee;
• the period of work corresponding to the payment;
• the date of the payment;
• the reference year;
• the duration of his annual vacation;
• the date of departure for vacation with pay; and
• the date on which the employee benefited from a paid statutory holiday including any compensatory holiday.

The register for each year must be kept for at least three years.

Deductions from wages

The employer may not make deductions from wages unless he is required to do so pursuant to an act, a regulation, a court order, a collective agreement, an order or decree or a mandatory supplemental pension plan. The employer may make deductions from wages if he is authorized to do so by the employee, in writing, and for a specific purpose. The employee may at any time revoke that authorization except where it pertains to membership in a group insurance plan or a supplemental pension plan.

Gratuities

Any gratuity paid directly or indirectly by an employer to an employee in the hotel and restaurant business belongs to the employee and does not form part of the wages that are otherwise due to him or her. Nevertheless, minimum call-in pay (see (i)), statutory holiday indemnity (see (k)), vacation pay (see (m)), leaves for family events (see (o)), compensatory indemnities for termination or layoff (see (u)) and benefits under the Employment Insurance Act are to be computed on the basis of wages, increased by the amount of tips attributed or reported pursuant to the Taxation Act.

Overtime

Except for security guards, employees working in a sawmill or forestry operation and employees working in a remote area, the regular work week is 40 hours. Any work performed beyond 40 hours is considered overtime work and must be remunerated at time and a half. Overtime is not payable to all employees; for example, managers or employees who work outside the establishment and whose working hours cannot be controlled are not entitled to overtime. The employer may, at the request of the employee or in the cases provided for by a collective agreement or a decree, replace the overtime by a paid leave equivalent to the overtime worked plus 50% (for example, if an employee has worked four hours of overtime, he may be entitled to a six-hour paid leave). The leave must be taken within the 12 months following the overtime at a date agreed upon between the employer and the employee; otherwise the overtime must be paid.

The Labour Standards Act does, however, set limits on the amount of overtime hours you may require an employee to work. An employee may refuse to work more than four (4) hours beyond his or her regular work day, or for more than 14 hours in a 24-hour period, whichever period is shorter. If an employee works flex or non‑continuous hours, the employee may refuse to work more than 12 hours in a 24-hour period.

The Labour Standards Act also allows an employee to refuse to work more than 50 hours in a week.

As an employer, however, you may nonetheless require an employee to work hours in excess of these limits in emergency situations, such as where there is a danger to your employees.

Minimum call-in pay

An employee who reports for work at the express demand of his employer or in the regular course of his employment and works fewer than three consecutive hours is entitled to an indemnity equal to three hours' pay, except where the nature of the job is such that it is normally completed within three hours or where the nature of the work requires the employee to be present several times in the same day.

Presumption that employee is at work

An employee is deemed to be at work when he or she is available to the employer at the place of employment and is required to wait for work to be assigned, as well as during the break periods granted by the employer, when travel is required by the employer or during any trial period or training required by the employer.

Statutory holidays

The following days are statutory holidays:

• January 1 (New Year's Day);
• Good Friday or Easter Monday, at the option of the employer;
• the Monday preceding May 25 (Victoria Day);
• July 1 or July 2 if July 1 falls on a Sunday (Canada Day);
• the first Monday in September (Labour Day);
• the second Monday in October (Thanksgiving Day);
• December 25 (Christmas Day).

An employee required to work on a statutory holiday is entitled to be paid a compensatory indemnity equal to 1/20 of the wages earned during the four complete weeks of pay preceding the week of the holiday, excluding overtime. If an employee is remunerated on commission, the indemnity must be equal to 1/60 of the wages earned during the twelve complete weeks of pay preceding the week of the holiday.

Should an employee be required to work on a statutory holiday, the employee is entitled to receive, in addition to his or her regular pay, the indemnity mentioned above or to be granted a compensatory day off at a date agreed to by the employer and the employee, which must be taken within the three weeks preceding or following the holiday, unless a collective agreement or a decree provides for a longer period.

If the employee is on vacation on a statutory holiday, the employer must pay him or her the above-mentioned indemnity or give the employee a compensatory day off at a date agreed upon by both parties.

In order to be entitled to a holiday, the employee must not be absent from work without the employer's authorization or without valid cause on the day preceding or following the holiday.

June 24, Québec National Holiday

With regard to June 24, different rules apply, as it falls under the National Holiday Act. If June 24 falls on a Sunday, the national holiday will be held on June 25. The employer must pay the employee a compensatory indemnity equal to 1/20 of the wages earned during the four complete weeks of pay preceding the week of the holiday, excluding overtime. If an employee is remunerated on commission, the indemnity must be equal to 1/60 of the wages earned during the twelve complete weeks of pay preceding the week of the holiday.

In any establishment or service where, by reason of the nature of its activities, work is not interrupted on June 24, the employer, in addition to paying to the employee working on June 24 the wages for the work done, must pay the above indemnity or grant the employee a compensatory holiday, which must be taken on the working day preceding or following June 24. If June 24 falls on a day which is not a regular working day for the employee, the employer must pay the above indemnity or grant a compensatory holiday which must be taken on the working day preceding or following June 24. If June 24 falls during the vacation of an employee, he is entitled to a compensatory holiday, which must be taken at a date agreed upon between the employee and the employer.

Vacation

An employee progressively acquires the right to vacation during a reference year. In Québec, unless there is an agreement between the employer and the employee fixing a different starting date, the reference year extends from May 1 of the preceding year to April 30 of the current year.

The Labour Standards Act provides that the employee who is hired at any given time of the year must wait until the end of the reference year to take a vacation.

If, at the end of the reference year, the employee has less than one (1) year of uninterrupted service with the employer, he is entitled to an uninterrupted leave for a duration of one (1) day per month of service up to a maximum of two (2) weeks.

The employee, who at the end of a reference year has more than one (1) year but less than five (5) years of uninterrupted service with the employer is entitled to a minimum of two (2) consecutive weeks of vacation. In addition, the employee may apply for an additional leave without pay equal to the number of days required to increase his annual leave to three weeks.

The employee, who at the end of a reference year is credited with five (5) years of uninterrupted service is entitled to a vacation for a minimum duration of three (3) consecutive weeks. However, any employer who, before March 29, 1995, closed his establishment for the period of annual vacation, may divide the vacation of such an employee into two (2) periods, one being the closing period. One (1) of those periods must, however, last for a minimum of two (2) consecutive weeks.

Vacation must be taken during the twelve months following the end of the reference year. The employer may, at the request of the employee, allow him or her to take the annual leave, or part of it, during the reference year. Furthermore, if at the end of the twelve months following the end of a reference year, the employee is absent due to sickness, an organ or tissue donation for transplant, an accident or a criminal offense or is absent or on leave for personal or family reasons, the employer may, at the employee's request, defer the annual leave to the following year. If it is not deferred, the employee must be paid the indemnity to which he or she is entitled.

The vacation may be divided into two (2) periods at the request of the employee. However, the employer may refuse the request if he closes his establishment for a period equal to or greater than that of the employee's vacation. The employee cannot divide his or her vacation into more than two (2) periods without the employer's consent. A leave not exceeding one week cannot be divided.

The employer determines the date of the employee's vacation. The employer must, however, let the employee know his or her vacation dates at least four (4) weeks in advance.

It is prohibited to replace a vacation by a compensatory indemnity. In other words, employees must take their vacations. However, the third week of vacation may, at the request of the employee, be replaced by a compensatory indemnity if the establishment closes for two weeks on the occasion of the annual vacation.

The indemnity relating to the vacation is equal to 4% of the gross wages earned by the employee during the reference year if the employee has less than five (5) years of service, or 6% of the gross wages if he or she has five (5) years of service or more at the end of the reference year.

The vacation indemnity must be paid to the employee in a lump sum prior to the beginning of the vacation.

If employment is terminated before the employee is able to benefit from all the days of vacation to which he or she is entitled, the employer must pay to the employee an indemnity equivalent to 4% or 6%, as the case may be, relating to the fraction of the vacation that he or she did not take, plus 4% or 6% of the gross wages earned during the current reference year.

Rest periods

The employee is entitled to a minimum weekly rest period of 32 consecutive hours.

The employee is entitled, after five (5) consecutive hours of work, to a meal period of 30 minutes without pay. That period must be remunerated if the employee is not authorized to leave his or her work station.

Leaves for family events

An employee is entitled to the following leaves for family events:

Event	Duration of leave
Death or funeral of spouse, child, spouse's child, father, mother, brother, sister	One (1) day without reduction of wages plus four (4) additional days without pay
One (1) day without reduction of wages plus four (4) additional days without pay	One (1) day without pay
Suicide of child or spouse	Period of not more than 52 weeks
On the wedding day of the employee's child, father, mother, brother, sister, spouse's child	One (1) day without pay
On the employee's wedding day	One (1) day without reduction of wages
Medical examination related to pregnancy, or examination by midwife	Leave without pay (no maximum number of days)
To fulfill obligations relating to the care, health or education of the employee's child or spouse's child, or because of the state of health of the employee's spouse, parent, sibling, or grandparent	Ten (10) days per year without pay
If one of the persons mentioned above has suffered a serious illness or serious accident	12 weeks without pay (provided the employee has three (3) months or more of continuous service) over a period of 12 months
Birth of a child or adoption of a child or where there is a termination of pregnancy in or after the twentieth week of pregnancy	Two (2) days with pay (provided the employee has sixty days or more of continuous service) Three (3) more days without pay The leave may not be taken more than 15 days after the child arrives at home or after the termination or the pregnancy
Adoption of the spouse's child	Two (2) days without pay

Maternity and Paternity leave

A pregnant employee is entitled to a maternity leave without pay of not more than 18 consecutive weeks unless the employer consents to the employee's request of a longer period of leave. Normally, the leave may not start before the 16th week preceding the expected date of delivery (note that there are exceptions, in particular where there is a risk of miscarriage). The employee may spread the maternity leave as she wishes before or after the expected date of delivery. However, where the maternity leave begins on the week of delivery, that week shall not be taken into account in calculating the maximum period of 18 consecutive weeks.

During the time an employee is on maternity leave, she may request an extension of her absence for a maximum period of six weeks. The request must be granted if a medical certificate, submitted to the employer before the end of the maternity leave, attests that the state of health of the employee or her new-born child requires an extension of the maternity leave. In that case, the leave is extended by the duration indicated in the certificate. Where the child is hospitalized during the maternity leave, the leave may be suspended during the hospitalization, following an agreement between the employer and the employee.

Where there is a termination of pregnancy before the beginning of the twentieth week preceding the expected date of delivery, the employee is entitled to a special maternity leave, without pay, for a period of no longer than three weeks, unless a medical certificate attests that the employee needs an extended leave. If it occurs in or after the twentieth week, she is entitled to maternity leave without pay for a maximum of 18 consecutive weeks beginning from the week of the event.

Starting January 1, 2006, an employee will be entitled to a paternity leave of not more than five (5) consecutive weeks, without pay, on the birth of his child. The paternity leave shall not begin before the week of the child's birth and shall not end later than 52 weeks after the week of the birth. This paternity leave is separate from the maternity leave and cannot be transferred to the mother.

At the end of the maternity or paternity leave, the employer must reinstate the employees concerned in their former positions with all the rights to which they would have been entitled if they had continued to work. If such a position no longer exists when the employee returns to work, the employer must recognize all the rights and privileges to which the employee would have been entitled if he or she had been at work at the time the position was closed.

See section 7 for information concerning Québec's Parental Insurance Plan which provides parents with benefits during maternity, paternity and parental leaves.

Parental leave

The parents of a minor child are entitled to a parental leave without pay of no more than 52 consecutive weeks. This leave is in addition to the 18 weeks of maternity leave and the five (5) weeks of paternity leave. The parental leave does not, however, apply to an employee who adopts the child of his or her spouse.

The parental leave may not begin before the child is born or, if adopted, before the child is entrusted to the employee. It must end no later than 70 weeks after the birth or day on which the child is entrusted to the employee.

At the end of a parental leave not exceeding 12 weeks, the employer must reinstate the employee in his or her former position with the same benefits. If the leave exceeds 12 weeks, the employer may assign the employee to a comparable position with at least the same salary.

If the position no longer exists when the employee returns to work, the employer must recognize all the rights and privileges to which he or she would have been entitled if he or she had been at work at the time the position was closed.

Absences owing to sickness, accident or a criminal offence

An employee who has three months of uninterrupted service may take up to 26 weeks of leave over a period of 12 months, due to sickness, an organ or tissue donation for transplant, or an accident other than an occupational injury. The employee must inform the employer of such absence, and the reasons for it, as soon as possible.

Upon the return of such employees, the employer must reinstate them in their former positions, with all the rights to which they would have been entitled if they had continued to work. If any such position no longer exists when the employee concerned returns to work, the employer must recognize all the rights and privileges to which the employee would have been entitled if he or she had been at work at the time the position was closed.

Employees may be absent from work for a period of not more than 104 weeks if they suffer serious bodily injury during or resulting directly from a criminal offence that renders them unable to hold their regular positions. In that case, the period of absence shall not begin before the date on which the criminal offence was committed, or before the expiry of the period provided for in the first paragraph, where applicable, and shall not end later than 104 weeks after the commission of the criminal offence.

Other family or parental leaves

An employee may be absent from work, without pay, for ten (10) days per year to fulfill obligations relating to the care, health or education of his or her child or spouse's child, or because of the state of health of the employee's spouse, parent, sibling, or grandparent. Employees having three months of uninterrupted service are allowed 12 weeks without pay to care for one of these people who has suffered a serious illness or serious accident.

The leave may be divided into days, which, with the employer's consent, may also be divided. The employee must take reasonable steps to reduce the duration of the leave, as well as the need to take it. The employer must be informed as soon as possible of the employee's absence. In the case of a serious accident or serious illness of a relative, where the employee is taking more than ten (10) days, the employer may require a document justifying the absence.

If the employee's child has a serious and potentially mortal illness, the employee is entitled to an extension of the absence, of up to a total of 104 weeks, upon presentation of a medical certificate.

As in the case of absences due to the employee's own illness or accident, employees, upon returning to work, must be reinstated in the same position as they would have filled had they not taken the time off

Absences of reservist employees

An employee who is also a reservist of the Canadian Forces may be absent from work, without pay, for one of the following reasons:

• if the employee is credited with 12 months of uninterrupted service, to take part in an operation of the Canadian Forces outside Canada, including preparation, training, rest and transportation from the reservist's place of residence and back, for a maximum period of 18 months;
• to take part in an operation of the Canadian Forces in Canada whose purpose is to:
• 1. provide assistance in the case of a major disaster ;
  2. aid the civil power;
  3. intervene in any other emergency situation designated by the Government;
• to take part in the annual training for the period prescribed by regulation or, if no such period is prescribed, for a period of not more than 15 days; or
• to take part in any other operation of the Canadian Forces, in the cases, on the conditions and for the period prescribed by regulation.

Psychological harassment

The Labour Standards Act specifically provides a recourse against psychological harassment in the workplace. The following rules pertain to that recourse.

Every employee has the right to be free from psychological harassment at work, and employers have a duty to take reasonable steps to prevent its occurrence, and to put a stop to it when they become aware of such unwanted behaviour. Psychological harassment is defined as "any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee's dignity or psychological or physical integrity and that results in a harmful work environment for the employee." A single incident may be considered psychological harassment, if it is serious and has a lasting harmful effect on the employee.

All collective agreements are deemed to contain the prohibitions on psychological harassment outlined above, as well as the recourses available to employees who believe they have been the victim of such harassment. The employee must exercise the recourses provided for in the agreement. The parties to such an agreement may apply together to the Minister to have a mediator appointed to settle the dispute at any time before the case is taken under advisement.

An Employee not covered by a collective agreement must exercise the recourse available before the Labour Relations Board ("Commission des relations du travail"), which may:

• order the reinstatement of the employee;
• order the employer to pay an indemnity to the employee (up to a maximum equivalent to wages lost);
• order the employer to take reasonable steps to stop the harassment;
• order the employer to pay punitive and moral damages;
• order the employer to pay an indemnity for loss of employment;
• order the employer to pay for the psychological support needed by the employee for a reasonable period of time (determined by the Commission);
• order the disciplinary record of the employee to be modified.

For more details on the options open to the Commission, refer to the section on "Recourse against psychological harassment" below.

Notice of termination of employment or layoff

Should the employer terminate the employment of an employee or lay him or her off for a period of six (6) months or more, the employer must notify the employee in writing at least:

• one (1) week in advance, if the employee has three (3) months and less than one (1) year of uninterrupted service;
• two (2) weeks in advance, if the employee has one (1) year to five (5) years of uninterrupted service;
• four (4) weeks in advance, if the employee has five (5) years to ten years of uninterrupted service;
• (8) eight weeks in advance, if the employee has ten (10) years or more of uninterrupted service.

Instead of giving written notice, the employer may pay the employee a compensatory indemnity equal to his or her regular wages, excluding overtime, for the period or remaining period of notice to which the employee is entitled.

No notice is required if the employee:

• has less than three (3) months of uninterrupted service;
• is terminated at the end of a fixed term contract;
• has committed a serious fault (the notion of serious fault has been very narrowly construed by the courts);
• is terminated or laid off as a result of a fortuitous event (e.g. closure of the plant as a result of a fire).

The indemnity must be paid:

• at the time of termination or layoff, if the layoff is expected to last more than six (6) months, or
• at the end of the six (6)-month period, if the layoff was expected to last less than six (6) months but exceeded that period.

If the employee is paid mainly by commission, the indemnity is based on the average of the employee's weekly remuneration in the three (3) months preceding the termination or layoff.

It should be noted that there are special provisions with regard to the timing of the payment where a collective agreement exists. Furthermore, the termination notice or compensatory indemnity provided for under the Labour Standards Act are deemed to be minimum requirements only: a right to longer notice or greater compensation may arise at civil law, depending on the circumstances. It should also be noted that the labour standards termination entitlement referred to above is included in the reasonable notice under the Civil Code of Québec (please refer to Section 1 above) and is not in addition to it.

Collective Dismissal

An employer who terminates more than ten (10) employees of the same establishment within a two(2)-month period must abide by the collective dismissal rules provided for in the Labour Standards Act. However, certain individuals are not considered employees for the purposes of the collective dismissal rules:

• an employee with less than three (3) months of continuous service;
• an employee whose contract for a fixed term has expired;
• an employee who has committed a serious fault;
• a senior manager or other person to whom the labour standards provisions do not apply;
• a person occupying a position that the Treasury Board has exempted, for reasons of urgency or of public interest, or for practical reasons.

These rules do not apply to the layoff of employees for an indeterminate period which does not in fact extend to more than six (6) months, nor to seasonal or intermittent activities. Finally, they do not apply to an establishment affected by a strike or lock-out.

In other words, any layoff in excess of six (6) months will be considered a termination for those purposes, unless you can show that the layoff is due to the seasonal nature of your business. This might be the case for employers in the agri-food business or even in certain retail situations.

If a layoff of more than ten (10) employees begins as a three (3)-month layoff and extends beyond six (6) months, it will become a collective dismissal and be covered by these stipulations. Practically, therefore, when in doubt as to the duration of the layoff, it may be better to consider it as a collective dismissal and give the required notice.

The employer must notify the Minister of Employment and Social Solidarity of the collective dismissal within the following minimum time periods. A copy of the notice should also be sent to the Labour Standards Commission ("Commission des norms du travail") and the union representing the employees. A copy must also be posted in a conspicuous place in the affected establishment.

Where the number of employees affected is:	The minimum notice period is:
At least ten (10) and less than 100 At least 100 and less than 300 At least 300	Eight (8) weeks 12 weeks 16 weeks

If the layoffs occur due to "superior force" (e.g. a major storm) or an unforeseeable event, the notice must be given as soon as the employer is in a position to do so. Under normal circumstances, however, it will be very difficult for an employer to rely on these exceptions.

If the employer does not give the notice prescribed by the Act or gives insufficient notice, he must pay to each dismissed employee an indemnity equal to the employee's regular wages, excluding overtime, for a period equal to the time period or the remainder of the time period within which he was required to give notice.

The indemnity must be paid at the time of the dismissal or at the end of a period of six (6) months after a layoff of indeterminate length or a layoff expected to last less than six (6) months but which exceeds that period.

Also, if the employer does not give the layoff notice required by the Act, or if he gives insufficient notice, he could be found guilty of an offence and be liable to a fine of $1,500 for each week or part of a week of failure to comply or late compliance.

The employer may not change the employees' wages or group insurance or pension plans during the notice period.

When more than 50 employees are affected, the Minister may require the employer and the union to participate in the establishment of a reclassification assistance committee, whose purpose is to minimize the impact of the dismissal and facilitate the maintenance or re-entry on the labour market of those employees. The employer shall reach an agreement with the Minister as to the extent of the employer's contribution to defray the operating costs of the committee or, failing an agreement, make the contribution determined by regulation.

Work certificate

At the expiry of his or her contract of employment, an employee may require the employer to issue to him or her a work certificate containing the following information: the nature and duration of his or her employment, the dates on which the employment began and ceased and the name and address of the employer.

This certificate must not contain any mention of the quality of the employee's work or the conduct.

The above provision does not, however, prevent the employer from giving the employee a letter of reference if warranted.

Retirement

Employees are entitled to continue to work notwithstanding the fact that they have reached or passed the retirement age.

It is prohibited to dismiss, suspend or retire an employee on the ground that he or she has reached or exceeded the retirement age.

Employee who are so dismissed, suspended or retired may file complaints with the Labour Standards Commission, asking to be reinstated, and will benefit from a legal presumption that those measures were imposed because of their age. The burden will be on the employer to show another good and sufficient cause. The Labour Standards Commission may represent, free of charge, an employee who does not belong to a bargaining unit. Note that the employee may also file a complaint of discrimination based on age with the Québec Human Rights and Youth Rights Commission (see Section 13 below).

Alienation of an undertaking

The sale or concession of a business, in whole or in part, does not affect the continuity of the application of the labour standards nor an employee's civil claims which are not paid at the time of the sale or concession.

Recourse against illegal dismissal and other prohibited practices

The Labour Standards Act provides for a special protection and reinstatement recourse in the case where an employee is dismissed, suspended, transferred, or is a victim of discrimination or reprisals or any other sanction on the ground that:

• the employee has exercised a right under the Labour Standards Act;
• the employee has provided information to the Labour Standards Commission;
• a third party seized the employee's salary, or he is a debtor of alimony;
• the employee concerned is pregnant;
• the employer is trying to evade the application of the Labour Standards Act;
• the employee refused to work beyond his or her regular working hours because the employee's presence was required to fulfil obligations relating to the care, health or education of his or her child or spouse's child, or because of the state of health of the employee's spouse, parent, sibling or grandparents.
• (Note that the employee must take reasonable measures within his or her power to assume those obligations otherwise).
• the conduct of an inquiry by the Labour Relations Board in an establishment of the employer.

Employees who believe that they have been victims of sanctions for any of the above reasons may file complaints with the Labour Relations Board in order to be reinstated, if applicable, and will benefit from a legal presumption that the sanction was imposed illegally. The burden will be upon the employer to show that the sanction was imposed for another good and sufficient cause. The presumption, in the case of the pregnant employee, continues to apply for a period of at least 20 weeks after she has returned to work at the end of a maternity leave or parental leave. The Labour Standards Commission may represent, free of charge, an employee who does not belong to a bargaining unit.

Prohibited practice related to illness or an accident (other than an occupational disease or an industrial accident)

Employees having three months of uninterrupted service cannot be dismissed, suspended or transferred on the ground that they were absent by reason of illness or accident (other than an occupational disease or industrial accident) for a period not exceeding 26 weeks in the preceding 12 months. An employee who believes that he or she has been a victim of a sanction for the above reason may file a complaint with a labour commissioner in order to be reinstated, if applicable, and will benefit from a legal presumption that the sanction was imposed illegally. The burden will be upon the employer to show that the sanction was imposed for another good and sufficient cause. The Labour Standards Commission may represent free of charge an employee who does not belong to a bargaining unit.

Note, however, that the consequences of an employee's illness or accident or the repetitive nature of his or her absences may constitute good and sufficient cause.

It is to be noted that an employee on leave due to illness or accident may claim Employment Insurance benefits for a maximum of 15 weeks under the Employment Insurance Act.

Recourse against psychological harassment

Employees who believe that they have been victims of psychological harassment at work, or any non-profit organization dedicated to the defence of employees' rights, may file a complaint in writing before the Labour Standards Commission within 90 days of the last occurrence of the offending behaviour.

The Labour Standards Commission will investigate any such complaint and may refer it to the Labour Relations Board. An individual may refer his or her own complaint to the Labour Relations Board if the Labour Standards Commission refuses to do so.

Prior to referring a complaint to the Labour Relations Board, the Commission may, with the consent of the parties request that a mediator be appointed to help settle the dispute.

If it upholds the employee's complaint, the Labour Relations Board may, in all circumstances:

• order the reinstatement of the employee;
• order the employer to take reasonable steps to stop the harassment;
• order the employer to pay an indemnity for loss of employment;
• order the disciplinary record of the employee to be modified.

During any period when an employee is suffering from an "employment injury", as defined in the Act Respecting Industrial Accidents And Occupational Diseases, however, the Labour Relations Board may not:

• order the employer to pay an indemnity to the employee (up to a maximum equivalent to wages lost);
• order the employer to pay punitive and moral damages; or
• order the employer to pay for the psychological support needed by the employee for a reasonable period of time (determined by the Commission);

If the Labour Relations Board considers that it is probable that the employee's injury entails an "employment injury", it must reserve its decision regarding the above orders, given that the employee may be compensated under the Act Respecting Industrial Accidents and Occupational Diseases.

Senior managerial personnel

The Labour Standards Act applies to all employees except senior managerial personnel. Although there is no definition of "senior managerial personnel", the statute and its regulations are really intended to exclude only those persons who exercise substantial influence in the administration of the business and have a high degree of decision-making power. Nevertheless, certain provisions of the Act still apply to senior managerial personnel: i.e., the provisions with respect to retirement; maternity leave; parental leave; leave for the birth or adoption of a child; leave to fulfil obligations relating to the care, health or education of a minor child; and leave to undergo medical examination related to the pregnancy. The recourse against psychological harassment is also open to senior managerial personnel.

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