In May 2013, we discussed an important judgment of the Québec Court of Appeal1 which ruled that an employer may waive an employee's notice of resignation without any obligation to pay severance or his or her salary during the notice period (see our article Can an employer waive the employee's notice of resignation without paying any indemnity? - the Québec Court of Appeal says it can, May 2013).
In a dissenting opinion, one of the three judges of the Court of Appeal refused to endorse the principle that employees risked losing their salary for the duration of notice period by reason only of the fact that they complied with their duty to give reasonable notice of resignation. According to the dissenting judge, the majority opinion was contrary to the legislator's intention to protect the employee, a vulnerable party in the employment relationship.
On September 5, 2013, the Supreme Court of Canada granted leave to appeal this judgment of the Québec Court of Appeal. Thus, the Supreme Court of Canada will now have to decide if the employer can waive the employee's notice of resignation without paying any indemnity. This upcoming judgment will clarify the employer's obligation toward the resigning employee under Québec employment law. It could also have a ripple effect in common law provinces where the general rule is that the employer cannot waive the resignation notice without providing severance pay.2
1 Asphalte Desjardins inc. c. Commission des normes
du travail, 2013 QCCA 484.
2 See: Oxman v Dustbane Enterprises Ltd., [1988] OJ No. 2067 (ONCA).
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.
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