Today, your employee notiﬁes you that he will be leaving in three weeks. Not too happy with this, you reply that you no longer require his services and that he is therefore terminated immediately. In such circumstances, are you released from the obligation to pay an indemnity in lieu of a notice of termination? The answer is no.
As the Supreme Court of Canada ruled recently in Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., an employer who decides to end an employment relationship before the expiry of the notice given with the resignation will still be required to pay a compensation under the Act respecting labour standards, and possibly under the Civil Code of Quebec.
In that case, the employee had been employed since 1994. On February 15, 2008, he gave his resignation, eﬀective three weeks later, on March 7. However, on February 18, the employer, having tried in vain to convince the employee to stay, decided to end the contract the following day rather than March 7, without compensating the employee as provided by s. 82 of the Act respecting labour standards and art. 2091 of the Civil Code.
The employee ﬁled a complaint with the Commission des normes du travail which, in turn, launched a civil claim to compel the employer to pay compensation under s. 82 of the Act respecting labour standards.
Eventually, the case ended up before the Supreme Court of Canada, that ruled in favour of the employee.
The Court stated that, upon receiving a resignation, an employer cannot unilaterally terminate the employment contract without giving a notice or a corresponding compensation. If the employer refuses to let the employee perform his duties and to pay his salary until the end of the notice of termination or the eﬀective date of resignation, he thereby terminates the contract, thus giving application to s. 82 of the Act respecting labour standards.
In the Court’s opinion, it is an error to conclude that the employee’s resignation amounts to renunciation to the notice of termination. As it states, “An employer who advances the date of termination of the contract after an employee has given notice of termination eﬀects not a ‘renunciation’, but a unilateral resiliati on of the contract of employment, which is authorized only as provided by law (arts. 1439 and 2091 C.C.Q.)” (para. 40).
It seems inappropriate to interpret the notice of termination as a renunciation. The resignation does not justify a departure from the principle that a party may not unilaterally cease to perform its contractual obligations, to the detriment of the other party’s rights.
Still, should your employee give his resignation, you maintain your management rights. You may still exercise them, within reason, to manage the relations with your employee as though the employment were to continue as usual during the notice of termination. You can even, with just and suﬃcient cause, exercise discipline over your employee, even terminating him immediately if it is justiﬁed.
Terminating an employee, even after he has announced his resignation, is a potentially expensive decision. If necessary, do not hesitate to consult with a legal advisor before making such a potentially signiﬁcant gesture.