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AN EMPLOYEE GIVES HIS RESIGNATION WITH A PRIOR NOTICE OF A ELEVEN (11) MONTHS and the employer must pay total duration of this prior notice

Opinion CJD

In the matter of Paul Sylvestre vs Distribution Zone Électronique inc. 2017 QCTAT 3655, a recent decision of the Labor Board (Tribunal Administratif du Travail – TAT) the employee Sylvestre resigns with a prior notice of eleven (11) months.

The employer, finding this delay unreasonable, had advised the employee that he must leave his employment after three (3) months from the date that he resigned.

You will remember the Asphalte Desjardins inc. case rendered by the Supreme Court of Canada where the Court had accepted the submission by la Commission sur les normes du travail to the effect that, in such a case, the employer terminated employment of the resigning employee.

At that time, Asphalte Desjardins inc. had submitted to the Court that a resignation could not be transformed or considered as a termination.  Specifically, should the submission by the CNT be retained, the resigning employee (later terminated), would benefit from all recourses provided not only under la Loi sur les normes du travail (require a reintegration) but also all dispositions as provided under the Civil Code of Quebec the right to have a reasonable prior notice (or an indemnity) in addition to the prior notice as provided under the LNT.

This would permit an employee that resigned to give a prior notice of a duration of one (1), two (2) years or even more and, should the employer require the employee to leave his employment before the end of the duration of the prior notice to contest his termination under the dispositions of article 124 LNT which would be to ask to be reintegrated; the employee would also claim to be paid for the duration of the prior notice as provided under article 82 of the Loi sur les normes du travail (LNT) and also payment of a reasonable prior notice as provided under the dispositions of the Civil Code.

I am of the opinion that, in answer to this argument, the Supreme Court wrote the following:

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)

In the Sylvestre decision, the administrative judge Line Lanteigne follows the Supreme Court in the Asphalte Desjardins inc. case in so far as the termination of employment is concerned.

The administrative judge states that the employer did indeed terminate the employee that had given his resignation on the date that the employer requested Mr. Sylvestre to leave his employment.

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 of the reasonableness (or not) of the duration of the prior notice given by the employee or the prior notice given by the employer.

The Labor Board states that the plaintiff must be reinstated in his employment and this until the date of his resignation, in effect roughly one (1) year later.

The Labor Board orders the employer to pay the employee that resigned/terminated (sic) an indemnity that is equivalent of the salary and other benefits due to the employee up to the date of his resignation.

It is surprising for the Labor Board to discharge itself of deciding if a prior notice given by a resigning employee is reasonable or not since, as per stated by the Supreme Court of Canada, this question is intimately linked to what the employer should pay to the employee.

If the Labor Board follows principles as stated by the Supreme Court of Canada in regards to considering an employee that resigned as being terminated; the remedy to apply must also conforms itself the principles as stated by the Supreme  Court of Canada.

In the Sylvestre case, I am of the opinion that the prior notice remitted by the employee that resigned of a duration of roughly one (1) year was in fact unreasonable.

The supplementary question must have been asked :  the prior notice of three (3) months remitted by the employer, before requesting the employee to leave his employment, was it reasonable?  This delay appears to me reasonable in the context of an employee giving his resignation.

I am not of the opinion that the Labor Board cannot decide if the duration of a prior notice given by an employee that resigns or by an employee in such a case was reasonable or not.

On the contrary, it appears to me that the Labor Board must decide this question once the Labor Board stated that the employee was, in fact, terminated.

This is in fact, what the Supreme Court of Canada has stated:  «… in so far as the duration of the prior notice given by the employee is reasonable.»

In conclusion, I am of the opinion 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.