The notice period, often confused with the notice of termination of employment provided for in section 82 of the Act respecting Labour Standards[1], is, however, a distinct concept that all workers and employers should be aware of.
It refers to the ‘period that the employer or employee must observe between the notice of termination of the employment contract and its effective termination'[2] and has two (2) main objectives:
1) If the employee resigns, the notice period allows the employer to find a replacement. During the notice period, the resigning individual must continue to honor their employment contract.
2) If the employee is dismissed, the notice period allows them to find another job with similar characteristics. The employer will then have the choice to let them work during the notice period or to pay them compensation equivalent to that period based on their salary.
It should be noted here that a resigning employee who is subsequently dismissed will still be entitled to a notice period. In such a situation, the employer cannot effectively decide to waive the notice period[3].
Reasonable Duration
Section 2091 of the Civil Code of Quebec[4] states that the notice period must be of a reasonable duration.
But what is a ‘reasonable’ duration? It is essentially a factual question that must be determined using the following factors[5]:
-Nature and importance of the position;
-Leaving another job to take the job in question;
-Age;
-Number of years of service and employee experience;
-Ease or difficulty of finding an identical or similar occupation;
-Subsequent job search;
-Existence or non-existence of a serious reason for dismissal.
The notice period is therefore a much greater obligation than that provided for in section 82 of the Act respecting Labour Standards[6], which applies only to the employer and provides for a written notice in case of dismissal according to a predetermined time scale. For example, the Act provides for notice to be given one week before the termination of employment if the employee has less than one (1) year of service[7], whereas the notice period under the Civil Code of Quebec could be longer.
To get a clearer idea, here are some examples of notice periods granted in case law:
Planning in Advance: Possible or Not?
The notice period can be stipulated according to specific terms negotiated between the employer and the employee at the beginning of the employment relationship. However, said contract does not deprive the employee of their recourse under section 2091 of the Civil Code of Quebec if the contractually agreed duration cannot be qualified as ‘reasonable'[8].
Inapplicability in Certain Circumstances
Fixed-Term Employment Contract
Section 2091 of the Civil Code of Quebec[9] explicitly specifies that the notice period is applicable only in the context of an indefinite-term employment contract, i.e., when it does not provide for an end date for employment.
However, case law has recognized its applicability to indefinite-term contracts that are successively renewed[10].
Unionized Employees
In the judgment Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés de garage du Québec inc.[11], the Supreme Court of Canada ruled that the notice period did not apply to unionized employees, mainly for three (3) reasons:
I. ‘The working conditions of unionized employees are collectively negotiated by the union and the employer, whereas the notice provided for by the [Civil Code of Quebec] is agreed upon individually at the time of termination of employment'[12].
II. ‘The notice period due to the employee in the context of an individual employment contract is linked to the employer’s right to dismiss an employee, whereas this right of the employer is limited by the collective agreement in the collective regime'[13].
III. ‘The history of the provision shows that the legislator did not intend to make all rules relating to individual employment contracts applicable to the collective regime'[14].
A worker who does not fall into one of these categories will therefore normally be able to benefit from a notice period, an advantage that is, to say the least, interesting for employees who are victims of dismissal.
[1] Act respecting Labour Standards, R.S.Q., c. N-1.1, s. 82.
[2] Hubert REID, Dictionnaire de droit québécois et canadien, 5th ed., Montreal, Wilson & Lafleur, 2015.
[3] Asphalte Desjardins inc. v. Commission des normes du travail, 2013 QCCA 484.
[4] Civil Code of Quebec, R.S.Q., c. CCQ-1991, s. 2091.
[5] Standard Broadcasting Corporation v. Stewart, [1994] RJQ 1751 (C.A.).
[6] Supra, note 1.
[7] Id.
[8] Supra, note 4; Jean-Pierre BRIÈRE, Fernand MORIN, Dominic ROUX and Jean-Pierre VILLAGGI, Le droit de l’emploi au Québec, 4th ed., Montreal, Wilson & Lafleur, 2010, para. II-171.
[9] Supra, note 4.
[10] Atwater Badminton and Squash Club Inc. v. Morgan, 2014 QCCA 998.
[11] Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés de garage du Québec inc., 2006 SCC 2.
[12] Id, para. 9.
[13] Id.
[14] Id.
Text written by Gabriel Roussin-Léveillée, law student
