Economic Crisis And Collective Dismissal: Ten (10) Golden Rules To Follow In Quebec

In the current economic context, many Quebec employers are faced with the difficult decision of closing their establishments or dismissing some or all of their employees. The purpose of this bulletin is to provide you with ten (10) golden rules to be followed to ensure that dismissals will be made at minimum cost and in accordance with the Quebec legislation. While some of these rules apply to unionized employees, this bulletin will address only non-union employees.

"Collective dismissal" is defined by the Quebec Labours Standards Act ("Act") as the termination of ten (10) employees or more, in the same establishment, within the course of two (2) consecutive months, save for some exceptions. If you are in this situation, the ten (10) golden rules you must observe are the following:

1. A Notice of Collective Dismissal ("N.C.D.") must be prepared, posted and sent beforehand to the Government within strict delays.
2. Form and Content of the N.C.D.: there is no prescribed format, but the N.C.D. must at least include the following information:
   
   
   • the name and address of the employer or of the establishment concerned;
   • the activity sector;
   • the name and address of the employees' associations (where applicable);
   • the reason for collective dismissal;
   • the scheduled date of the collective dismissal;
   • the number of employees affected by the collective dismissal;
     
     
3. Posting and Mailing: the N.C.D. must be posted in a visible and easily accessible area in the establishment concerned and must be mailed to the Minister of Employment and Social Solidarity. It becomes effective as of the date of its mailing. A copy of the N.C.D. must also be sent to the Labour Standards Commission.
4. Delay for the N.C.D.: to avoid being liable for a fine of $1,500.00 per missing week, you must ensure that the Minister receives the N.C.D. within the following delays:
   
   

   Number of Employees	Periods
   10 to 99 100 to 299 300 and over	8 weeks before the dismissal date 12 weeks before the dismissal date 10 weeks before the dismissal date

5. An Individual Notice of Termination ("I.N.T.") must also be given to each employee. There is no prescribed format or content, but it is highly recommended that the I.N.T. contain all the terms and conditions of the termination and be given, by hand, to each affected employee.
6. Delays for the I.N.T.: you must absolutely observe the following minimum delays provided for in the Act:
   
   

   Continued Service	Notice
   3 months to 1 year 1 - 5 years 5 - 10 years 10+ years	1 week before the dismissal date 2 weeks before the dismissal date 4 weeks before the dismissal date 8 weeks before the dismissal date

7. Reasonable Notice of Termination ("R.N.T."): The minimum delay prescribed by the Act for remittance of the I.N.T. does not replace the reasonable delay provided for in the Civil Code of Quebec, which each party must observe before the termination. Said delay depends on various factors, namely, the employee's number of years of service, age, type of position, salary, availability of alternative employment, etc. For lack of formula to calculate precisely the applicable delay, the practitioners have developed a "rule of thumb" (given to you as standard reference only) establishing a range of reasonable delays according to the facts of each situation:
   
   
   1. a notice of two (2) to three (3) weeks per year of service, in the case of clerical employees or line-workers;
   2. a notice of three (3) to four (4) weeks per year of service, in the case of technical [non professional] or supervisory personnel;
   3. a notice of one (1) month per year of service, in the case of managerial personnel and professionals.
      
      
8. Non-Cumulative: Good news! The delays for the N.C.D., I.N.T. and R.N.T. are not compiled in a cumulative manner but in a concurrent manner. Thus, you must ensure that the minimum statutory delays provided for in the Act and the criteria of reasonable delay are observed before terminating the employment bond.
9. Working Notice: All or part of the delays for the N.C.D. and the R.N.T. can be done, either in remunerated time at the regular salary, without overtime hours, or be compensated by an equivalent monetary indemnity or any combination of both, at your sole discretion.
10. Reclassification Committee: When the number of employees affected by the collective dismissal is equal or greater than fifty (50), the Minister of Employment and Social Solidarity will require that you establish a Reclassification Committee. Numerous mechanisms are already in place but you should come to an agreement as to the extent of services to be offered to the employees and the amount of your contribution and that of the Government, generally 50/50 with certain limits.

Determining the reasonable delay applicable to each individual is more an art than a science. These ten golden rules are just the beginning of the analysis which requires taking into consideration the relevant jurisprudence, the current economic context and the particulars of each terminated employee. It is therefore highly advisable to consult a lawyer competent on the subject before proceeding to a termination, be it individual or collective.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2009 McMillan LLP