To use a hockey metaphor: sometimes, a party to a contract will literally score an own goal. He will seize the puck and shoot in the direction of his own net while taking the goaltender’s attention away from the game.

This is perhaps how the employer must feel in Lang c. Groupe Lelys inc (Flexo Express inc.), a judgment rendered on July 31, 2014.

The relevant facts can be summed up quite simply. The plaintiff was hired by the defendant in March 2010, to work as a printing press operator. The contract was for an indeterminate term. In May 2010, the plaintiff received a letter confirming the conditions of his employment. The letter stated that the employer “guarantees you a minimum of 35 hours of work per week” [para. 8, translation].

In January 2011, invoking decreased business, the employer informed the plaintiff that his employment was temporarily suspended. If, after six months, the plaintiff was still unemployed, he was to receive two weeks’ salary as notice of termination.

Six months went by, during which the plaintiff received no payment from the defendant. At the end of this period, the defendant paid him two weeks’ salary and his vacation pay.

The plaintiff sued for a substantial amount, most of which was denied. The Court did, however, award him six months’ salary, based on the guarantee clause in his contract.

How could this happen?

In Quebec, an employer may, under adverse business conditions, temporarily lay off workers. Although the employment contract remains in force, no work has to be performed, and no salary has to be paid.

Except that, in this case, the employer specifically guaranteed a minimum of  35 hours of work per week. The Court simply held the employer to its word. It could not unilaterally decide to set aside the agreement or change its terms and conditions.

Of course, at the hearing, the employer alleged that the adverse business conditions were a force majeure that released it from its obligations under the contract.

However, employment contracts are ruled by several legal sources, including the basic principles of contract law. Under these principles, force majeure can indeed release a party from certain obligations — except an obligation of guarantee…

The irony of the situation is that, in these circumstances, the employer could probably have simply terminated the employee in January 2011 rather lay him off. But that’s not what happened.

What can be learned from this?

  • Drafting a contract, even a short letter to confirm basic terms and conditions, is a delicate exercise.
  • Making fundamental changes to an employment relationship, such as ordering a six-month suspension, can trigger unexpected obligations.