Miller Thomson LLP

1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

In Quebec, claims concerning minimum employment and labour standards are filed by non-unionized employees before the “Commission des normes du travail, de l’équité, de la santé et de la sécurité du travail” (the “CNESST” (the Labour Standards Board)) (the former “Commission des normes du travail”) and these claims can eventually be referred to the “Administrative Labour Tribunal (the “ALT” (the Labour Relations Board)) under its Labour Relations Division (the former “Commision des relations du travail”) if they are not settled.

The CNESST can also initiate legal proceedings before the civil courts to recover any amount owing to an employee or a group of employees which is payable under the provisions of the Act respecting Labour Standards, such as salary, vacation pay, and statutory notice of termination. In the case of wrongful and illegal dismissal complaints, as well as psychological harassment complaints, it may provide free legal representation to a dismissed employee and represent him before the ALT. Except for cases of psychological harassment, the right to parental leave and the right to work past the normal retirement age, the CNESST will not represent claims from senior executives, who will have to present claims arising out of their employment contracts before the courts of civil jurisdiction.

Other claims, including claims for wrongful dismissal where the plaintiff is only requesting damages in lieu of reasonable notice, must be instituted before the Superior Court or the Civil Division of the Quebec Court, depending on the amount in dispute. It is illegal to contract out of the jurisdiction of the courts of Quebec in any matter concerning a dispute arising out of a contract of employment (section 3149 Civil Code of Quebec).

Grievances arising out of the application of a collective agreement must be resolved through binding arbitration.

Claims regarding discrimination related to employment, such as discrimination on the grounds of race, sex, pregnancy, sexual orientation, civil status, age, religion or handicap, may be instituted before the “Tribunal des droits de la personne” (Human Rights Tribunal).

The ALT is also the forum for claims regarding work injuries and occupational diseases under its Occupational Health and Safety Division (the former “Commission des lésions professionnelles”).

Indeed, on January 1, 2016, the “Commission des lésions professionnelles” (Professional injury Board) and the “Commission des relations du travail” (Labour Relations Board) has merged to form only one administrative tribunal: the ALT.


The Main Sources Of Employment Law

The Civil Code of Quebec contains general rules concerning the contract of employment which apply to most employment situations (sections 2085 to 2097).

The Act respecting Labour Standards provides for minimum standards which apply to all employees except senior executives. The latter are nevertheless covered by the psychological harassment protection provided in the Act. Individual contracts of employment and collective agreements may add contractual obligations to these minimum standards.

The relationships between unions, unionized employees and employers are regulated by the Quebec or the Canada Labour Code, depending on the activities of the employer.

The Act Respecting Occupational Health and Safety establishes the rights and obligations of employees and employers in order to eliminate dangers to the health, safety and physical well-being of employers. Whereas the Act Respecting Industrial Accidents and Occupational Diseases provides a process of compensation for employment injuries and certain obligations related to them.


National Law And Employees Working For Foreign Companies

For Quebec provincially regulated undertakings, the Act respecting Labour Standards may apply to the employee who performs work both in Quebec and outside Quebec for an employer whose residence, domicile, undertaking, head office or office is in Quebec.

The individual contract of employment may provide that it is governed by the laws of the Province of Quebec or from another jurisdiction, but the parties cannot contract out of public order protections (Article 3118 of the Civil Code of Quebec). Most labour and employment legislation in Quebec are considered to be of public order.


National Law And Employees Of National Companies Working In Another Jurisdiction

The Act respecting Labour Standards applies to any employee domiciled or resident in Quebec who performs work outside Quebec for a provincially regulated employer whose residence, domicile, undertaking, head office or office is in Quebec.

The individual contract of employment may provide that it is governed by the laws of another jurisdiction subject again to the principle that the parties cannot contract out of public order protections when the employee usually performs their work in Quebec (Article 3118 of the Civil Code of Quebec).


Data privacy

According to the Act respecting the Protection of Personal Information in the Private Sector, an employer is only allowed to collect employees’ personal information to establish an employee file, using only the information necessary for the aim of the file. The employer must obtain the employee’s consent prior to communicating their personal information, unless the communication of such information is required by government authorities according to applicable laws.

2

HIRING THE EMPLOYEE

Legal Requirements As To The Form Of Agreement

There is no legal requirement as to the form of an employment agreement, it can be oral or in writing.

However, all contracts of employment must meet the minimum standards set out in the Act respecting Labour Standards.


Mandatory Requirements
  • Probation Period

    • “Probationary periods” can be included in an employment agreement. However, according to Section 82.1 of the Act respecting Labour Standards, an employer does not have to provide the statutory written notice of termination if an employee has less than three (3) months of uninterrupted service. Therefore, even if the employment agreement provides for a longer “probationary period”, the employee may be entitled to a reasonable notice which shall include the statutory notice under the Act respecting Labour Standards.

  • Hours Of Work

    • According to Quebec law, employees can be remunerated in two ways, either an annual salary or an hourly rate. An employee earning an annual salary does not have an hourly rate and their hours are not accounted for by the employer. These employees are therefore not entitled to receive overtime pay.

    Employees earning an hourly rate are entitled to receive overtime pay. For the purposes of computing overtime, the regular work week is 40 hours. Any work performed in addition to the regular work week entails a premium of 50% calculated on the hourly wage paid to the employee, according to Sections 52 and 55 of the Act respecting Labour Standards.

  • Special Rules For Part-time Work

    • There are no special rules for part-time employees. Please refer to the section below regarding remuneration.

  • Earnings

    • There are minimum wage restrictions. The minimum wage payable to an employee is determined by regulation of the Government and an employee is entitled to be paid a wage that is at least equivalent to the minimum wage, according to Section 40 of the Act respecting Labour Standards.

    Also, no employer may remunerate an employee at a lower rate of wages than that granted to other employees performing the same tasks in the same establishment for the sole reason that the employee usually works fewer hours each week according to Section 41.1 of the Act respecting Labour Standards. This does not apply, however, to employees remunerated at a rate of pay which is more than twice the rate of the minimum wage.

    Under Section 87.1 of the Act respecting Labour Standards, it is illegal to give a lesser standard (wages, vacation, etc.) on the sole basis of the date of hiring.

  • Holidays/Rest Periods

    • There is a minimum requirement of two (2) weeks of holidays for employees with one (1) to three (3) years of uninterrupted service and of three (3) weeks for employees with more than three (3) years of uninterrupted service, according to Sections 68 and 69 of the Act respecting Labour Standards. An employee with less than one year of uninterrupted service is entitled to holiday at the rate of one working day for each month of uninterrupted service up to two weeks, according to Section 67 of the Act respecting Labour Standards.

    Unless otherwise provided in a collective agreement or a decree, employers must grant to an employee a rest period of 40 minutes, without pay, for a period of five (5) consecutive hours of work. Employees are entitled to a weekly minimum rest period of 32 consecutive hours.

  • Minimum/Maximum Age

    • No employer may have work performed by a child under the age of 14 years without first obtaining the written consent of the holder of parental authority, according to Section 84.3 of the Act respecting Labour Standards.

    An employee is entitled to continue to work notwithstanding the fact that they have reached or exceeded the age or number of years of service at which he should retire pursuant to a general law or special Act applicable to him, or pursuant to the common practice of their employer, according to Section 84.1 of the Act respecting Labour Standards.

    In addition, Section 122.1 of the Act respecting Labour Standards stipulates that no employer may dismiss, suspend or retire an employee, practice discrimination or take reprisals against him on the grounds that he has reached or passed the age or the number of years of service at which they should retire pursuant to a general law or special Act applicable to him. On the same subject, the Quebec Charter of Human Rights and Freedoms prohibits to discriminate on the grounds of age.

  • Illness/Disability

    • An employee who is credited with at least three (3) months of uninterrupted service is entitled to be absent from work, without pay, for a period of not more than 26 weeks over a period of 12 months in the event of sickness, accident an organ or tissue donation for transplant, according to Section 79.1 of the Act respecting Labour Standards.

    The first two (2) days of absence taken annually are paid (Section 79.16 of the Act respecting Labour Standards).

    Employers may require employees to provide reasonable documentation evidencing their medical situation depending on the circumstances of the leave.

    Upon the return from such absence, the employer must reinstate the employee in their former position, with the same benefits to which they would have been entitled had they remained at work.

    Discrimination against an employee suffering from a handicap (including dependence to alcohol or narcotics) is prohibited by the Quebec Charter of Human Rights and Freedoms. An employee with a disability must be accommodated up to the point of “undue hardship”.

    An employee is also entitled to be absent from work, without pay, for a period of 10 days per year to fulfil obligations relating to the care, health or education of the employee’s child or the child of the employee’s spouse, or because of the state of health of a relative (as described in Section 79.6.1 Act respecting Labour Standards) or a person for whom the employee acts as a caregiver. However, the first two (2) days of absence taken annually are paid if the employee has cumulated three (3) months of uninterrupted service with their employer.

    The Act respecting Labour Standards also protects many other types of leaves that an employee is entitled to take.

  • Location Of Work/Mobility

    • remunerated for the time they are travelling when travel is required by the employer. In that case, the employer shall also reimburse reasonable expenses incurred by the employee (Section 85.2 of the Act respecting Labour Standards).

  • Pension Plans

    • There is no legal obligation for an employer to set up a pension plan. If one is in place, it is subject to the Pension Benefits Standards Act.

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • For the mother, the Act respecting Labour standards provides for a maternity leave of a maximum of e18 weeks (Section 81.4) and a parental leave of a maximum of 65 weeks or 52 weeks if the child is born prior to January 1, 2021, Maternity leave shall not end later than 18 weeks after the week of delivery.

    According to the Act Respecting Occupational Health and Safety, a mother-to-be shall benefit from precautionary cessation of work if her employment represents a potential risk to her health or the baby’s health.

    The father is entitled to a paternity leave of a maximum of 5 weeks (Section. 81.2) and a parental leave of a maximum of 65 weeks or 52 weeks if the child is born prior to January 1, 2021 (Section 81.10 of the Act respecting Labour Standards). Paternity leave shall not end later than 78 weeks or 52 weeks, if the child is born prior to January 1, 2021, after the week of delivery.

    The parental leave from which both parents may benefit shall end no later than 78 weeks after the birth or the moment when an adopted child was entrusted to the employee (Section. 81.11 of the Act respecting Labour Standards).

    Parents of an adopted child may only benefit from 52 weeks of parental leave if the child is adopted prior to January 1, 2021, or from 65 weeks of parental leave, in addition to 5 days at the occasion of the adoption.

    The leaves of absence may be compensated by benefits from the Quebec Parental Insurance Plan.

  • Compulsory Terms

    • There are implicit legal obligations arising out of the Civil Code of Quebec concerning the obligation for an employer to take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee (Article 2087) and the obligation for an employee to act faithfully and honestly and not use any confidential information they may obtain in carrying on or in the course of their work (Article 2088). Also, an employee may not renounce their right to obtain compensation for any prejudice resulting from insufficient notice of termination or where the manner of termination is abusive (Article 2092).

    As previously stated, the Act respecting Labour Standards is deemed to be public order legislation, and as such, any agreement that contravenes its dispositions or that is inferior to them is deemed null (Section 93 of the Act respecting Labour Standards).

  • Non-Compulsory Terms

    • Non-compulsory terms can be agreed between an employer and employee provided the provisions are no less favourable to the employee than the Act respecting Labour Standards. Most frequently such provisions will deal with remuneration, job title/job description, non-competition, no solicitation and confidentiality issues as well as the duration of the agreement (indeterminate duration or fixed term).


Types Of Agreement

Pursuant to the Civil Code of Quebec, employment agreements are either for a fixed term or an indefinite term (Section 2086). A contract of employment is tacitly renewed for an indeterminate term where the employee continues to carry on their work for five days after the expiry of the term, without objection from the employer (Section 2090 of the Civil Code of Quebec).


Secrecy/Confidentiality

There is a general obligation in this regard during employment and for a reasonable time after cessation, even if there is no specific provision in the employment contract. Indeed, all employees are bound to perform their work with prudence and diligence, to act faithfully and honestly and not use any confidential information they obtain in the performance of their work. This obligation is stipulated in Section 2088 of the Civil Code of Quebec and is implicit in all employment agreements.


Ownership of Inventions/Other Intellectual Property (IP) Rights

In the absence of any provision in the employment contract, Section 13 (3) of the Copyright Act states that where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of their employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright.


Pre-Employment Considerations

The Quebec Charter of Human Rights and Freedoms provides that an employer may not practise discrimination when hiring employees because of race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

However, if an employer makes a distinction, exclusion or prefers a candidate to another based on the aptitudes or qualifications required for an employment, it is deemed non-discriminatory.

The Quebec Charter of Human Rights and Freedoms prohibits employers, in an employment application form or employment interview, to require a person to give information regarding any ground of discrimination mentioned above, unless the employer is able to prove that there is a rational link between the type of employment and the questions or tests requested from the candidate.

The Quebec Charter of Human Rights and Freedoms also provides that employers may not refuse to hire or otherwise penalize a person due to the mere fact this person was convicted of a penal or criminal offence, unless the offence is connected to the employment. Therefore, employers must be careful before asking for a background check as a condition of employment, considering that if a candidate, who was asked for a background check is not hired, it could be deemed to be a violation of the Quebec Charter of Human Rights and Freedoms.

In addition, employees’ right to privacy prohibits employers from asking questions that would intrude in the candidate’s private life.


Hiring Non-Nationals

Generally, the employer must demonstrate that no Canadian could perform the duties envisaged for the non-national employee. In certain situations, such as those falling under the Free Trade Agreement, more generous access to work in Quebec may apply for specific categories of workers.

Non-nationals employees must have a work permit delivered by the Canadian immigration authorities or have the right to work under a specific treaty.


Hiring Specified Categories Of Individuals

The employer may choose to create an Equal Access Employment Program enabling the victims of discrimination to obtain priority in employment. Such programs are deemed non-discriminatory.


Outsourcing And/Or Sub-Contracting/Temporary Agency Work

There are no specific rules restricting an employer from outsourcing and/or sub-contracting. However, section 95 of the Act respecting Labour Standards states that an employer who enters into a contract with a subcontractor is responsible jointly and severally with that subcontractor for the pecuniary obligations fixed by the Act respecting Labour Standards or its regulations. Section 45 of the Labour Code was amended to prevent the application of successor legislation to subcontracting.

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MAINTAINING THE EMPLOYEE RELATIONSHIP

Changes To The Contract

A non-material change may be made unilaterally by the employer without notice. A material change must be accepted by the employee or be preceded by a reasonable notice period before it is enforced, otherwise any such change will constitute constructive dismissal.


Change In Ownership Of The Business

Subject to any contractual provisions to the contrary, the employment contract is not terminated as a result of the sale of a business. It is binding upon the new employer, according to Article 2097 of the Civil Code of Quebec and Section 97 of the Act respecting Labour Standards.

In the absence of continuation of employment, the former employer must fulfil all its obligations arising out of a termination of employment. The new employer is jointly liable with the former employer for any claim arising from the application of the Act respecting Labour Standards which was not paid at the time of the change of ownership (Section 96).

In the case of unionized employees, the transfer of the collective agreement will most frequently be assumed by simple operation of the law, the whole according to Section 45 of the Labour Code.

Section 76.11 of the Pay Equity Act stipulates that the sale of a business or the modification of its legal structure shall have no effect upon obligations relative to adjustments in compensation, a pay equity plan or a pay equity audit, which shall be binding on the new employer.

Finally, Section 34 of the Industrial Accidents and Occupational Diseases Act provides that where an establishment or part of it is sold or transferred otherwise than by judicial sale, the new employer assumes the obligations of the former employer under the Act toward the worker and, in respect of payment of the assessment due at the time of the alienation or transfer, toward the CNESST.

According to Section 45 of the Labour Code in the case of unionized workers, the new employer shall be bound by the certification or collective agreement as if he were named therein and becomes ipso facto a party to any proceeding relating thereto, in the place and instead of the former employer.

Any new employer having a place of business in Quebec with at least one (1) employee must be registered with the CNESST in order to benefit from this insurance against dangers to the health, safety and physical well-being of workers.


Social Security Contributions

Contributions are made to the “Régie des rentes du Quebec” (The public Quebec Pension Plan), to the Quebec Parental Insurance Plan and for Employment Insurance.


Accidents At Work

The Occupational Health and Safety Act and the Industrial Accidents and Occupational Diseases Act contain provisions dealing with accidents at work, for which an employee can present a claim to the CNESST. Any disputes arising from those claims may be settled by the ALT.


Discipline And Grievance

For unionized employees, the ability to discipline employees is usually dealt with by the provisions of the collective agreement. Collective agreements typically provide rules to follow and implement progressive discipline before termination of an employee will be justified.

If an employee in the unionized context considers discipline to have been unjustly applied, they can file a grievance following the procedure mandated is the collective agreement.

For non-unionized employees, progressive discipline applies except for egregious conduct (theft, fraud, or sexual harassment). Non-disciplinary sanctions are subject to progressive measures also.

Non-unionized employees cannot benefit from the grievance procedures, but they can file a complaint with the CNESST in the event that the employer has violated one of its obligations under the Act respecting Labour Standards.


Harassment/Discrimination/Equal pay

Every employee is protected against discrimination on the ground of race, colour, sex, pregnancy, sexual orientation, civil status, age, religion, political convictions, language, ethnic or national origin, social condition, and handicap.

Also, every employee has the right to work in an environment free from psychological and sexual harassment. Sections 10 and 10.1 of the Quebec Charter of Human Rights and Freedoms states that every person has a right to full and equal recognition and exercise of their human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. Furthermore, no one may harass a person on the basis of any of these grounds.

Employers must take reasonable action to prevent psychological and sexual harassment and, whenever they become aware of such behaviour, to put a stop to it. This implies that an employer can be held liable for harassing behaviour of one of their employees.


Compulsory Training Obligations

Section 3 of the “Act to Promote Workforce Skills Development and Recognition” stipulates that every employer whose total payroll for a calendar year exceeds the amount fixed by regulation of the Government is required to participate for that year in workforce skills development by allotting an amount representing at least 1% of their total payroll to eligible training expenditures.


Offsetting Earnings

Section 49 of the Act respecting Labour Standards stipulates that no employer may make deductions from wages unless they are required to do so pursuant to an act, a regulation, a court order, a collective agreement, an order or decree or mandatory supplemental pension plan. The employer may make deductions from wages if the employee consents to it in writing, for a specific purpose mentioned in the writing. The employee may at any time revoke that authorisation except where it pertains to membership in a group insurance plan, or a supplemental pension plan.


Payments For Maternity And Disability Leave

Benefits during maternity/paternity/parental leave

As mentioned in the Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption) section, employees have the right to take maternity, paternity and parental leave for a certain period of time without pay. The leaves of absence may be compensated by benefits from the Quebec Parental Insurance Plan.

The eligible recipients of Quebec Parental Insurance Plan can choose between a Basic plan and a Special plan (s. 18 of the Act respecting Parental Insurance).

The Basic plan provides for a benefit equivalent to 70% of the weekly insurable salary for the 18 weeks of maternity, the 5 weeks of paternity, the first 7 weeks of parental and for the first 12 weeks of adoption benefits. Then, the recipients receive 55% of the weekly insurable salary for 25 weeks of parental benefits or adoption benefits.

The Special plan provides for a benefit equivalent to 75% of the weekly insurable salary for 15 weeks of maternity, the 3 weeks of paternity, 25 weeks of parental and for the 28 weeks of adoption benefits.

Provincial law provides that an employee on maternity leave, subject to certain conditions, may receive either 70% of the base average weekly salary (subject to a statutory maximum salary cap currently of $67,500) for a period of 18 weeks or 75% of base average weekly salary for a period of 15 weeks. If the leave is shared with the spouse (paternity leave) the percentages may vary.

Other similar rules apply in the case of adoption. An employee on parental leave, subject to certain conditions, may receive either 70% of the base average weekly salary for the first 7 weeks of leave and 55% of the base average weekly salary for the subsequent 25 weeks or 75% of base average weekly salary for a period of 25 weeks.

Disability leave

Employees covered by a group insurance plan will receive benefit payments for short term and long-term disability according to the terms of the group insurance plan.

Employees who are not covered by a group insurance plan may receive Employment Insurance Sickness Benefits for a maximum period of 15 weeks.


Compulsory Insurance

There is no obligation for an employer to set up or provide group insurance. However, if such a plan is offered, there are specific rules in the Civil Code of Quebec concerning group insurance policies.


Absence For Military Or Public Service Duties

Employees are entitled to take leave for military or public service duties.


Works Councils or Trade Unions

The Quebec Labour Code does not regulate the setting up or internal constitution of a Work Council or a Trade Union. These entities are governed by their own internal regulations and by-laws. These regulations and by-laws must conform to the general rules concerning non-profit organizations contained in the Civil Code of Quebec and the Professional Syndicates Act. However, the Labour Code does regulate the conditions under which a Trade Union may be certified with a particular employer as well as the rules dealing with collective bargaining and the exercise of the right to strike.


Employees’ Right To Strike

Unions have the right to declare a legal strike and employers have the right to declare a legal lock-out. For private sector unions, these rights will generally be acquired 90 days after the notice to start bargaining was served on the other party. Once it is acquired, there is no requirement to provide the other party or the authorities with any notice of intent for the strike or lock-out to be legal. However, the party which declared a strike or lock-out must notify the Minister in writing within 48 hours following the declaration of the strike or lock-out and indicate the number of employees comprised in the bargaining unit concerned (Sections 58 and 58.1 of the Quebec Labour Code). During this period, the employer cannot hire replacement employees and can generally only use management employees hired prior to the bargaining period to replace the striking employees. These rules are stipulated in Sections 106 to 109.1 of the Quebec Labour Code.

In the public and para-public sectors, the right to lock-out employees do not exist. The right to strike is severely limited and the “Conseil des services essentiels” (Essential Services Council) must approve the list of employees who will be authorized to strike prior to the launching of any strike.


Employees On Strike

An employee who is legally on strike or lock-out remains an employee for the full duration of the conflict. They may only be terminated for a just and sufficient cause other than the fact that they are legally on strike. Accordingly, participation in an illegal strike may be cause for discipline including termination. At the end of a strike or a lock-out, any employee who has been on strike or has been locked out is entitled to recover their employment by priority over any other person unless the employer has good and sufficient reason for not recalling such employees, according to Section 110.1 of the Labour Code.


Employers’ Responsibility For Actions Of Their Employees

Employers are liable for the actions of their employees by virtue of the Civil Code of Quebec. However, the employer will not be held liable if the employee has acted outside the scope of their duties (see Article 1463 of the Civil Code of Quebec).

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FIRING THE EMPLOYEE

Procedures For Terminating the Agreement

There are no special procedures for terminating an agreement, unless the collective agreement or the employment agreement provides otherwise. Some agreements may provide for some form of due process. However, special damages can be claimed where a termination was executed in an abusive manner.

However, according to Section 82 of the Act respecting Labour Standards, the employer must give written notice to an employee before terminating his or her contract of employment or laying the employee off for more than six (6) months. The written notice can be replaced by an indemnity in lieu of the written notice (see subsequent section).

In addition, the provision of the statutory written notice or payment in lieu thereof, an employer shall always give reasonable notice when terminating an indeterminate term contract, pursuant to Article 2091 of the Civil Code of Quebec (see subsequent section).

There are special rules dealing with mass termination where 10 or more employees are let go in the same establishment in the course of two consecutive months (Sections 84.0.1 to 84.0.15 of the Act respecting Labour Standards) (see subsequent section).

There are certain minimum steps which must be followed before termination to avoid a claim for unjust dismissal, such as giving administrative or disciplinary notice and following progressive sanctions.


Instant Dismissal

However, written notices are not necessary when terminating an employee who has less than three (3) months of uninterrupted service or when their contract for a fixed term or for a specific undertaking expires. The written notice is also not necessary for an employee who has committed a serious fault, or in the case of an employee for whom the end of the contract of employment or the layoff is a result of an act of God.

An employer who does not give the notice prescribed by section 82 of the Act respecting Labour Standards, or who gives insufficient notice, must pay the employee a compensatory indemnity equal to their regular wage, excluding overtime, for a period equal to the period or remaining period of notice to which they were entitled.


Employee's Resignation

There are no rules in the Act respecting Labour Standards dealing with an employee’s resignation. However, the Civil Code of Quebec imposes on the employee the duty to provide reasonable notice of their impending resignation. The length of this notice will depend on the employer’s capacity to replace the employee. Typically, unless the employee occupies a very specialised position, notice periods given by employees vary between one week and one month.


Termination On Notice

Both parties can terminate on notice. However, under the Act respecting Labour Standards, a variety of special statutory recourses may provide for the reinstatement of an employee who has been illegally terminated (without just and sufficient cause, harassment, etc…).

Reasonable notice under the Civil Code of Quebec includes the statutory notice provided under the Act respecting Labour Standards. Notice periods may vary from a minimum of three months to a maximum of 24 months. If notice is not given, the employee will be entitled to an indemnity in lieu thereof. The indemnity is to be calculated on the whole remuneration (salary, benefits, bonus, shares, options, pension plan) paid to the employee.

If the employer terminates the employment, he must at civil law provide adequate advance notice of such termination (reasonable notice), and which will be evaluated taking into consideration the age, position, salary and continuous service of the employee amongst other criteria. As mentioned above, under the Act respecting Labour Standards, several statutory recourses may provide for the reinstatement of an employee who does not hold a senior executive position and who was illegally terminated (without just and sufficient cause, harassment, etc…).


Termination By Reason Of The Employee's Age

As a general rule, an agreement cannot be terminated by reason of the employee’s age. This is prohibited by the Act respecting Labour Standards and the Charter of Human Rights and Freedoms. In the case of certain specific occupations (for example, airline pilot, fire-fighter), it may be provided that an employee must resign at a certain age.


Automatic Termination In Cases Of Force Majeure

Certain conditions apply in cases of termination brought about by force majeure. In cases of individual termination, this does not include an employer’s economic difficulty. In cases of collective dismissal, in certain specific instances, unforeseen economic circumstances may relieve the employer from its obligation to provide notice.


Collective Dismissals

Under Section 84.01.1 of the Act respecting Labour Standards, the termination or layoff for a period of six (6) months or more of not fewer than 10 employees of the same establishment in the course of two (2) consecutive months constitutes a collective dismissal. The employer must notify the Minister of Employment and Social Solidarity within the prescribed minimum periods depending on the number of employees terminated or laid off for a period of six (6) months or more. The same notice must be sent to the CNESST and the certified union and must be posted at the employer’s establishment. The employer must also provide adequate advance notice under the Civil Code of Quebec (reasonable notice) to the dismissed employees.


Termination By Parties’ Agreement

The employer may terminate the agreement in cases where there is an economic reason but he must give a reasonable notice or pay an indemnity in lieu thereof.


Directors Or Other Senior Officers

As a general rule, most directors are not employees of the corporation. Senior officers are employees of the corporation.

Like the rest of the employees, senior officers of the corporation are entitled to reasonable written notice prior to termination of their employment. However, except for cases of psychological harassment, these individuals do not have access to the recourses provided by the Act respecting Labour Standards to contest their termination of employment. However, they can file an action before the courts of civil jurisdictions in order to claim their civil rights to reasonable notice if they consider same as insufficient.


Special Rules For Categories Of Employee

Different rules apply to certain categories of employees.

Firstly, senior executives (cadres supérieurs) are not covered by most of the provisions of the Labour Standards Act.

Secondly, mid-level managers may not be unionized under the Labour Code.

Thirdly, unionized employees are not entitled to the Civil Code of Quebec’s reasonable notice or the indemnity in lieu thereof.


Whistleblower Laws

There are few rules dealing with whistleblowing in Quebec. Section 425.1 of the Criminal Code makes it an indictable offence threaten or take reprisals (including termination of employment) against an employee to compel him to refrain from providing information to a person whose duties and responsibilities include the enforcement of a federal or provincial law.

Section 1472 of the Civil Code of Quebec provides that an employee does not breach their duty of confidentiality and is not civilly liable if they disclose a trade secret in order to avoid serious damage or harm and if the disclosure is deemed to be in the public interest. However, there is no statutory remedy for a whistleblower to file a complaint or to seek redress or compensation for reprisals suffered as a result of the disclosure, unless the employee is employed by a public entity and discloses an act of corruption according to the Anti-Corruption Act.

Finally, the Act to Facilitate the Disclosure of Wrongdoings Relating to Public Bodies was adopted in 2016 in order to protect employees of a public entity to disclose any wrongdoing or potential wrongdoing that poses a serious risk to the health or safety of a person or the environment. However, there is no such legal protection for private sector employees in Quebec.


Specific Rules For Companies in Financial Difficulties

Directors may be held personally liable for the employees’ wages earned in the previous six (6) months.


Special Rules For Garden Leave

Garden leave clauses are not commonly used in Quebec. The legislation and Quebec case law have not yet established specific rules regulating such stipulations in an employment agreement. However, considering that Section 2087 of the Civil Code of Quebec provides that an employer is bound to allow the performance of the work agreed upon during the notice period, if the employer suspends the performance of the work by the employee, it could be considered as constructive dismissal, unless specifically provided for by the employment agreement.

It also has to be noted that the general rules on contractual obligations will apply to such scenarios. Therefore, a garden leave provision cannot be abusive with regards to the terms and conditions stipulated in the employment agreement.

There are also discussions about the possibility that a garden leave clause may have to comply with the rules related to non-competition clauses (as detailed in the section below).


Restricting Future Activities

The parties may stipulate in writing and in express terms that, even after the termination of the contract, the employee may neither compete with their employer nor participate in any capacity whatsoever in an enterprise which would then compete with their former employer.

To be valid, such a stipulation shall be reasonably limited as to time, place and type of employment. The reasonability is appreciated in light of what is strictly necessary for the protection of the legitimate interest of the employer. The burden of proof that the stipulation is valid is on the employer (Article 2089 of the Civil Code of Quebec). Such a provision cannot be enforced where the termination is without cause (Article 2095 of the Civil Code of Quebec). Elimination of a position as a result of a restructuring is not just cause under Quebec law.

Non solicitation covenants are also frequent and are enforceable if properly drafted. The Civil Code of Quebec also imposes a duty of loyalty on employees which duty survives termination of employment for a reasonable period (Section 2088).


Severance Payments

Indemnities payable in lieu of notice (there are no statutory “severance” payments other than the written notice of termination provide by Section 82 of the Act respecting Labour Standards) are calculated by taking into consideration the criteria listed above

Even though twelve (12) months once constituted a maximum period, recent decisions have increasingly granted more than that under the right set of circumstances (up to 24 months). Indemnities granted in lieu of reinstatement under various statutory remedies have also provided for higher limits.


Special Tax Provisions And Severance Payments

Indemnities in lieu of notice are subject to special tax rates and may, on certain conditions, be transferred tax free into the employee’s RRSP.


Allowances Payable To Employees After Termination

Employers are not required to contribute to any allowances payable to employees after termination.


Time Limits For Claims Following Termination

Claims for damages arising out of a wrongful dismissal (termination without cause) can be filed before the courts of civil jurisdiction within a three (3) year delay following the termination. Claims for unpaid wages, vacations and other benefits arising out of the Act respecting Labour Standards must be filed within one (1) year from the date at which the payment should have been made. Complaints for wrongful dismissal or illegal dismissals must be filed within forty-five (45) days of the termination before the CNESST. Complaints for psychological harassment must be filed no later than two (2) years from the last occurrence of psychological harassment before the CNESST. Claims for damages under the Charter of Human Rights and Freedoms must be filed within two (2) years of the discriminatory act.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

Quebec has a unique set of laws when it comes to employment matters. Here are a few examples:

    1. The Civil Code of Quebec provides that the Court has the power to declare unenforceable an “abusive” stipulation in a contract. This power has been applied numerous times to quash provisions of employment agreements.
    2. The Civil Code of Quebec also empowers the Court to set aside a contractual notice period contained in an employment agreement where the Court is of the opinion that the notice is insufficient having due regard to applicable case law.
    3. A non-unionized employee or manager may challenge their wrongful dismissal and seek reinstatement into their former position.
    4. The Charter of the French Language requires every business with over 50 employees in Quebec to adopt a francisation plan.
    5. Every business with more than ten employees is subject to the provisions of the Pay Equity Act. More stringent obligations applied to business with more than 50 employees.
    6. Once a legal strike or lock-out is declared, it is illegal to hire replacement workers.


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Contact a Contributing Author:
François Garneau
Miller Thomson LLP
Canada


Audrey Boiteau
Miller Thomson LLP
Canada


Disclaimer:

© 2021, Miller Thomson. All rights reserved by Miller Thomson as author and the owner of the copyright in this chapter. Miller Thomson has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021