Employer may waive employee's notice of resignation: Quebec court

Notice of resignation provides benefit to employer; employer can choose to forgo that benefit without penalty
By Nicolas Deslandres
|employmentlawtoday.com|Last Updated: 04/03/2013

The Quebec Court of Appeal recently rendered a decision that has major implications with respect to notices of resignation in Quebec . In a two-to-one decision, the Court of Appeal stated that an employer may waive the notice of resignation an employee must provide pursuant to the Civil Code of Quebec (CCQ). In considering the consequences attached to such a waiver, Justice Marie-France Bich decided 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, Daniel Guay started working with Asphalte Desjardins, a pavement company. On Feb. 15, 2008,  Guay submitted a resignation letter to his employer announcing that he would leave his employment on March 7, 2008. Guay also indicated he was joining a direct competitor that was offering better pay.Guay provided a three weeks’ notice so as to allow him to finalize certain files and prepare an overview of ongoing projects for his successor at Asphalte Desjardins.

On Feb. 18, 2008, the company unsuccessfully attempted to convince Guay to change his mind and stay with the company.The next day, it decided to immediately end his employment.

The Quebec Labour Standards Commission sought three weeks’ of pay on behalf of Guay pursuant to the act. The first judge granted the action. Asphalte Desjardins appealed the decision before the Court of Appeal.

In a very detailed analysis, Justice Bich clarified the obligations created by Article 2091 of the CCQ. She explained 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 suffered by the receiving party. While the notice may also, in practice, benefit the giving party — who 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, and while the notice may postpone its effect, it does not modify the legal nature of the resignation.

Justice Bich further stated 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 tempered her reasoning. She stated her proposed interpretation rested 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 called on the legislator to intervene.

Justice Bich also stated that, under certain circumstances, the exercise of the employer’s right to waive the notice of resignation could be considered abusive under the CCQ. By way of example, she referred 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 person.

The scope of the above remarks being quite wide, it is to be expected 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.

For more information see:

Québec (Commission des normes du travail) c. Asphalte Desjardins inc., 2013 CarswellQue 2371 (Que. C.A.).

Nicolas Deslandres  is an associate in the Montréal office of Stikeman Elliott and a member of the Employment and Labour Group. He can be reached at (514) 397-2419 or ndeslandres@stikeman.com. Patrick Essiminy is a partner in the Montréal office of Stikeman Elliott and practices employment and labour law. He can be reached at (514) 397-3659 or pessiminy@stikeman.com.

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