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THE EMPLOYEE THAT RESIGNED WITH A ELEVEN (11) MONTHS NOTICE:  FINAL JUGDMENT

Opinion CJD

This is the case  Distribution Zone Électronique inc. et TAT et Paul Sylvestre.

Resume

In this matter, the employee Paul Sylvestre had resigned giving a notice of eleven (11) months.

The employer, considering the duration of this prior notice unreasonable, had advised the employee that he had to leave his employment three (3) months later.

The employee contested this decision under the dispositions of article 124 L.N.T. alleging unjust termination.

Applying the principles as stated in the Asphalte Desjardins inc. (Supreme Court of Canada), the Labor Board (TAT) stated that there was indeed termination of employment.

Further, the TAT had to analyse if the termination of employment was for a just and sufficient cause.

In the present case, the TAT concluded that there was no just and sufficient cause; this applying again the principles as stated by the Supreme Court of Canada.

Notwithstanding the fact that the administrative judge emphasizes the terms of paragraph 44 of the Asphalte Desjardins inc. case, the administrative judge Line Lanteigne states that once the Board has concluded to unjust termination, the Board can only order the reintegration of the employee and the Board does not have to decide on the reasonableness (or not) of the duration of the prior notice given by the employee or the prior notice given by the employer.

It is useful to underline paragraph 44 as stated by the Supreme Court of Canada in the Asphalte Desjardins inc. case.

Paragraph 44 :  «An employer can request that an employee does not work for the full duration of the prior notice given by the employee, however, the employer must pay the employee for this period in so far as the duration of the prior notice given by the employee is reasonable.  The employer can also choose to terminate the contract of employment by given a prior notice that is reasonable or a corresponding indemnity, the whole in conformity to the provisions of article 20.91 of the Civil Code of Quebec or articles 82, 83 of the Loi sur les normes du travail.»

(translation mine)

This decision of the Board was challenged in judicial control before the Superior Court of Quebec.

The judgment

On 27 of March 2018, the Superior Court, by the honorable Robert Legris, rendered judgment:

Paragraph 6 :  «The judgement rendered in the Asphalte Desjardins inc. case (paragraph 44) which is referred to by the plaintiff must not be interpreted as signifying that an employee accepts that his employer terminate his employment without any cause if his prior notice is of a longer duration that the notice that the employer has to give him as per the dispositions of the Civil Code.  This paragraph simply determines that such a prior notice given by an employee that resigns cannot prevent the employer of his right to terminate the employment on the condition that a reasonable prior notice is given, the whole in the context of Civil Law.»

(translation mine)

That is the whole of the analysis of the Honorable judge Legris.

It would be interesting to understand how, in a context of Civil Law, an employer could put forth that a reasonable prior notice was given to the employee when the Labor Board (TAT) has already stated by judgment, that the employee was entitled to received payment of his salary for the whole duration of the prior notice given by the employee.

It appears that this judgment will not be filed to the Appeal Court.

À priori, as the judgments stand, it would appear that it is not possible for an employer in the province of Quebec who requests an employee that has resigned to leave employment before the end of the duration of the prior notice given by the employee and should a complaint of unfair dismissal be filed under article 124 L.N.T. to oppose to such a complaint that the employer has given the employee that resigned a reasonable notice of termination or that the employee that resigned (and was later terminated) should have mitigated his damages.

Alea jacta es.

The solutions

Notwithstanding, I see two possible solutions which would be legally viable and that would reestablish an equilibrium in a case such as Sylvestre.

The first consists, should an employer be in litigation in front of the Labor Board pursuant to a complaint under article 124 L.N.T., to specifically ask the Board to keep jurisdiction following his decision on termination to determine, could it be necessary, any monies which would be due to the terminated employee.

As far as I am concerned, the usual rules to determine what is due to an employee that was terminated unjustly were not put aside either by the decision of the Labor Board or by the judgment of the Superior Court in the Sylvestre case.

In such a case, I am of the opinion that an employer can seize the Labor Board of the reasonableness of a prior notice that the employer would have remitted to the employee that resigned (later terminated) and this, notwithstanding, the decision of the administrative judge Line Lanteigne.

I refer this exceprt from the Canadian Supreme Court in Asphalte Desjardins inc. «… but the employer must notwithstanding pay the employee for the duration, on the condition that the prior notice given by the employee was reasonable.»

(translation and emphasis mine)

In my opinion, the Supreme Court of Canada stated a condition for the payment which would be due to the employee that resigned; which is that the prior notice remitted by the employee must have been reasonable.

Further, the employer can certainly present arguments to the effect that the employee has received some remuneration during the prior notice period and that such sums must be deducted.

Or, alternatively, that the employee has not made any effort to mitigate his damages and must reduce whatever indemnity that would be due.

The second solution is by far more simple and short.

I refer to the opinion that I have already consigned which is that «it is time that the Quebec legislator put forth a similar disposition as one existing in Alberta which is that, in a case similar to the Asphalte Desjardins inc. case or the Sylvestre case, the employee that resigns would be entitled to only one prior notice period which would be equivalent to the duration period as the one provided under article 82 of Loi sur les normes du travail and nothing else.»

It is left to employers to present whatever representations that are necessary.

CJD