By Martin Pelletier, lawyer, arbitrator and mediator
Your employer has just permanently terminated your employment, or you are considering terminating one of your employees without the possibility of recall. You are likely wondering about the notice period and termination notice requirements to respect or receive. This article aims to familiarize you with these concepts, as well as your rights and obligations.
1. The notice period under Section 82 of the Act Respecting Labour Standards
Section 82 of the Act Respecting Labour Standards sets out minimum requirements for notice when terminating employment. This notice may be given as advance warning or compensated with financial indemnity, except in cases of dismissal for serious misconduct. This provision aims to protect employees by providing them with a transition period before losing their income.
To simplify the understanding of the required notice period, we have prepared the following table:
Continuous service with the employer | Notice period in time or financial equivalent $ |
|---|---|
Less than three months or for serious misconduct | 0 week |
Three months to one year of service | 1 weeks |
One year to five years of service | 2 weeks |
Five years to ten years of service | 4 weeks |
Ten years of service or more | 8 weeks |
It is essential to remember that the notice of termination must be given in writing, in accordance with the law. This requirement ensures clarity and traceability in communications between the employer and the employee.
In the case of a collective dismissal of ten (10) or more employees within a two-month period, the notice period is proportional to the number of affected workers:
Number of affected workers | Required written notice period before termination or an equivalent indemnity |
10 to 99 workers | 8 weeks |
100 to 299 workers | 12 weeks |
300 workers and more | 16 weeks |
The employer is also required to inform the Minister of Labour and the Commission des normes, de l'équité, de la santé et de la sécurité du travail (hereinafter "CNESST") in writing of any collective dismissal. This obligation ensures that workers' rights are upheld and allows for proper monitoring of collective dismissal situations. For more information on these obligations, you can visit the CNESST website.
If an employer fails to meet their notice obligations, an employee may file a monetary complaint with the CNESST. This process allows employees to assert their rights and seek appropriate compensation for any losses incurred due to the employer’s failure to comply with minimum labour standards.
2. The notice period under Article 2091 of the Civil Code of Québec
According to Article 2091 of the Civil Code of Québec, an employer (or an employee in the case of resignation) must provide a reasonable notice period when terminating an indefinite-term employment contract. This notice period must take several factors into account:
Nature of the employment: This includes the type of position, hierarchical level, and associated responsibilities.
Specific circumstances: Factors such as education, professional experience, or personal circumstances (relocation, family care) must be considered.
Length of service: An employee with several years of service may require a longer period to find new employment.
Difficulty in finding new employment: Aspects such as age or the scarcity of available positions should be taken into account.
Mitigation of damages: The employee must demonstrate reasonable efforts to find a new job to minimize their losses.
Recruitment by the employer: If the employee left a stable job at the employer’s request, this could justify a longer notice period.
Jurisprudence Related to Article 2091 of the Civil Code of Québec
Although each case is unique, notice periods generally range from two (2) weeks to one (1) month per year of service, without exceeding twenty-four (24) months. It is also crucial for the employer to compensate the employee for the loss of benefits during the notice period.
Compensation for Benefits During the Notice Period
When an employer terminates an indefinite-term employment contract and grants a notice period, it is essential to consider employee compensation for benefits during this time. This compensation will depend on the nature of the notice period—whether it is provided as working notice or compensated financially as part of a severance package.
1. Working Notice Period
If the notice period is provided as working notice, the employer must ensure that the employee continues to receive benefits during this period, including:
Vacation: Under Section 70 of the Act Respecting Labour Standards, the employee must be allowed to take accumulated vacation. The employer must grant access to accrued vacation during the notice period and pay vacation indemnities if they have not been taken.
Group Insurance and Pension Plans: During the notice period, the employer must maintain and cover their share of the employee’s group insurance and pension plan contributions. This ensures continued health protection in case of disability and prevents any loss of retirement benefits. The employee must also continue paying their share of contributions for both group insurance and the collective pension plan.
Bonuses, Incentives, and Expense Allowances: The employer must pay any other financial benefits that form part of the employee's total compensation, such as bonuses, allowances (e.g., cell phone reimbursement), etc.
2. Financial Compensation in Lieu of Working Notice
If the notice period is financially compensated—meaning the employer provides severance pay instead of working notice—it is important to include compensation for benefits in the severance package. This includes:
Vacation: The severance payment should account for accumulated vacation days to ensure the employee is not disadvantaged.
Group Insurance and Pension Plans: The employer may be required to include a monetary amount equivalent to the contributions they would have made to maintain these benefits during the notice period.
Bonuses, Incentives, and Expense Allowances: If bonuses or allowances are typically provided during a notice period, they should be included in the severance package to adequately compensate the employee.
In conclusion, it is common for employers and employees to be unaware of their rights and obligations regarding notice and the notice period. This confusion often arises from the similarity of the terms "notice" and "notice period", which, although distinct, are often perceived as interchangeable.
To learn more about your rights and obligations, we encourage you to visit the CNESST website and refer to relevant case law. Please note that this is not legal advice, and each case must be assessed individually. However, we are available to help clarify these concepts, particularly regarding the reasonable notice period to receive, negotiate, or offer based on legal precedents. Our expertise can guide you through the process to ensure compliance with labour standards and the protection of your rights.
Finally, we strongly encourage you to contact us without delay to meet limitation periods and avoid the risk of your claims being dismissed.