The March 2013 Quebec Court of Appeal decision of Asphalte Desjardins v Commission des Normes du Travailis a game-changer for employers and employees alike. Employers are no longer bound by the notice period given to them by employees who resign, thus removing their obligation to pay the employee for the duration of the notice period.

The facts of this case are simple and not uncommon. Mr. Guay, who worked intermittently for Asphalte Desjardins for approximately four years, provided his employer with a resignation letter and a three week notice period. The employer decided to waive the notice period provided by Mr. Guay once it had accepted his resignation.

Prior to this case, parties took for granted that, at minimum, the notice required by the Act Respecting labour standards (the “Act”) could not be waived by the employer. Faced with a resigning employee that an employer did not want on the premises, the employer had to pay the employee’s salary that would have been earned during the notice period.

In Asphalte Desjardins, the Court held that the employer did not have to pay Mr. Guay three  weeks of his salary, as sections 82 and 83 of the Act provides for notice or an indemnity in lieu of notice (which varies depending on an employee’s years of service) to employees whose employment is being terminated unilaterally by an employer and not in the case of a resignation.

Justice Bich, writing for the majority, held that the reasonable notice provision stipulated in article 2091 of the Civil Code of Quebec (“CCQ”) is to the benefit of the person receiving the notice. This is due notably to the fact that resiling from a contract is a unilateral act and because the purpose of article 2091 CCQ is to protect the rights of the co-contracting party. In other words, an employer has no other choice but to accept an employee’s resignation and its right to receive such notice. With this contractual framework in mind, Justice Bich concluded that if an employer decides to waive the notice period that accompanies an employee’s resignation, the employer is not required to pay the employee for the remainder of the notice period.

This conclusion was reached after an analysis that favoured a contractual approach rather than one predicated on the protection of workers’ rights. The Court focused on the ultimate consequence of a resignation and decided that since the contractual relationship between the employer and employee would terminate at the end of the notice period, the employer’s renunciation of the notice would not change the fact that the relationship was, for all intents and purposes, terminated. Justice Bich rejected the idea that such an immediate end of the employment relationship before the end of the notice period would constitute a termination of employment by the employer, and which would entitle the employee to reasonable notice or indemnity in lieu of notice pursuant to the relevant provisions of the Act.

Justice Bich held that such an interpretation of article 2091 CCQ did not contradict sections 82 and 83 of the Act. The latter are public-interest provisions intended to ensure that employees receive a minimal degree of protection in cases in which the termination of their employment contract is imposed on them by their employer.

While there has been a motion for leave to appeal submitted to the Supreme Court of Canada, the current state of the law in Quebec is that an employer may waive the notice provided by an employee and cease paying their wages at the time of the waiver.

Practically speaking, in the event that the Supreme Court overturns the Court of Appeal’s decision, an employer will be on the hook for unpaid wages in cases where it waived the notice provided by an employee who resigned and the employee files a complaint under the Act within the required one (1) year time frame.

It may therefore be prudent to continue to pay an employee the minimum amounts pursuant to the Act, during their notice period, until the Supreme Court renders its decision, if it indeed grants the leave for appeal. The decision on the motion for leave to appeal is expected in the next six months. We will keep you apprised of the progress of this case as it proceeds.