The Court of Appeal recently rendered a
decision that has major implications in that it reverses
the dominant Case law position in Quebec with respect to notices of
resignation. In a two to one decision, the Court of Appeal states
that an employer may waive the notice of resignation that an
employee must provide pursuant to Article 2091 of the Civil Code of
Quebec(C.C.Q.). In considering the
consequences attached to such a waiver, Justice Marie-France Bich
decides that it does not correspond to a termination of the
employment relationship by the employer as contemplated by Section
82 of An Act Respecting Labour
Standards(the Act). The employer therefore does not have to
indemnify the employee.
In 1994, the employee, Daniel Guay, started working with the
defendant Asphalte Desjardins Inc., a pavement company. On February
15, 2008, Mr. Guay submitted a resignation letter to his
employer announcing that he would leave his employment on March 7,
2008. Mr. Guay also indicated that he was joining a direct
competitor that was offering better pay. Mr. Guay provide a three
(3) weeks' notice so as to allow him to finalize certain files
and to prepare an overview of ongoing projects in order to help his
successor. On February 18, 2008, the employer unsuccessfully
attempted to convince Mr. Guay to change his mind and stay with the
company. On February 19, 2008, the employer decided to immediately
end the employment of Mr. Guay.
The Labour Standard Commission sought the payment of three
weeks' of pay on behalf of the employee pursuant to Section 82
of the Act. The first judge granted the action. The employer
appealed the decision before the Court of Appeal.
In a very detailed analysis, Justice Bich clarifies the
obligations created by Article 2091 C.C.Q. She explains that the
notice is for the benefit of the receiving party. The purpose of
the notice is to address the inconveniences resulting from the
unilateral resiliation of an employment contract that are suffered
by the receiving party. While the notice may also, in practice,
benefit the giving party, which thereby gains a transition period,
such practical advantage does not amount to a right. The employer,
in these circumstances, is thus free to forego the benefits
resulting from the notice of resignation.
An employer exercising such a waiver does not have to compensate
the resigning employee. Indeed, the employer waiving the right to
the notice does not thereby terminate the resigning employee.
Resignation is a termination of employment provoked by the
employee; while the notice may postpone its effect further in time,
it does not have the effect of modifying the legal nature of the
Justice Bich further states that no distinction should be made
between the case of an employee announcing a departure date and
that of an employee offering to stay during a transition.
It should be stressed, however, that Justice Bich tempers her
reasoning in obiter. She states that her proposed
interpretation rests on a contractual approach that may seem
difficult to reconcile with the general principles of employment
law, which recognize the inherent inequalities between employers
and employees and tend to protect the latter. Consequently, Justice
Bich calls on the legislator to intervene.
Justice Bich also states that, under certain circumstances, the
exercise of the employer's right to waive the notice of
resignation could be considered abusive pursuant to the C.C.Q. By
way of example, she refers to the case of an employee that
announces his retirement a year in advance or to the case of an
employee who provides notice in order to go take care of a sick
The scope of the above remarks being quite wide, it is to be
expected that they may be used by lower courts seeking to avoid the
strict application of this decision. An employer should therefore
act in a reasonable and conscientious manner when it foregoes a
notice of resignation without compensation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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