Interpretation: notice of termination, article 13.01

1. Calculation of the weeks of notice

How is the week or the 2 weeks of notice calculated?

1st principle: the day when the notice is given does not count.

Example : the one week notice is given on a Wednesday. The employee must thus work until the following Wednesday, inclusively.

2nd principle: if the notice is sent by mail, it is considered that the notice is given on the day of reception.

Example : a 2 weeks notice dated on Monday is received on Thursday. Thursday is the day when the notice is given. This Thursday does not count. The employee must work until Thursday two weeks later, inclusively.

2. Vacation and notice

If the vacation of an employee had already been set, and that notice is given thereafter, one must take account the duration of the vacation in the calculation of the period of notice.

Example : In June, the employer sets the vacation of an employee for the 3 weeks from August 4 to August 24. Thereafter, he learns that the service contract of the building where the employee works will not be renewed and will finish on August 31. The employee is entitled to 4 weeks notice because he has more than 5 years of service. The employer informs him in writing, August 4, at the time of his departure on vacation, that he will be laid off on August 31. The employee thus received his 4 weeks notice, distributed as follows: 3 weeks at the time of the vacation + one week worked from August 25 to August 31.

3. Prolongation of work beyond the completion date indicated on the notice

An employee receives his notice in due form. Before the date of termination indicated on the notice, the employer advises the employee that work will be prolonged until a precise date.

Does that cancel the notice already given? If so, does the employer have to deliver a new notice?

Answer : The notice is not cancelled. In practice, the employee has a notice even longer than that prescribed by the decree.

The legal explanation is as follows:

The contract of employment of unspecified duration finishes at the date specified within the notice.

On this date a new contract of given duration starts, since the employer specifies a termination date. However article 13.02, paragraph 2 stipulates that there is no notice in the case of a contract of given duration. It would obviously be different if the employer prolonged work without specifying the date of termination.

4. The verbal notice

Article 13.01 is very clear: the notice must be written. However, in Court, if it were proven that the employer clearly had warned the employee of the end of his employment within the time prescribed, so that the employee could seek another employment, it is extremely probable that in fairness, the employer would not be held to pay the compensatory indemnity.

Caution ! One speaks here about a verbal notice clearly given by the employer. If the employee learns about the end of the contract from the customer, or by rumour, that does not have any value. In this case, there are grounds for a claim.

The administrative policy of the Parity Committee, during the inspection of the payroll registration system of the employer, is to require copies of the notices in all the cases of layoffs. If the employer did not give a written notice, the inspector must communicate with the employee, and ask him or her whether verbal notice had been given. If no notice was given either written, nor verbal, there is a claim.

5. Notice and considerable lowering of hours

Jurisprudence established that when the employer cuts the number of hours of an employee by 33% and more, he must give a notice.

1st example : An employee works 40 hours per week. The employer advises that he is reducing his hours by 15 hours per week. The employee refuses.

It is a considerable reduction of hours which requires notice.

2nd example : The employee works 40 hours per week. The employer lays him off temporarily for a period less than 6 months. After 3 months, the employer offers 15 hours per week. The employee refuses.

a) The employer accepts the refusal and tells the employee he will be recalled when there is something else.

There is still no notice due for the moment, but it will be another matter after 6 months.

b) The employer does not accept the refusal, and tells the employee he regards that as a resignation.

There are grounds for a claim immediately.

The same would apply to any substantial modification of the working conditions. The employee can claim for a disguised dismissal.

Jurisprudences : 

Commission des normes du travail vs. Barrette,
D.T.E. 95 T – 199.
Commission des normes du travail vs. Cercueils André (1992) Inc. D.T.E. 96 T – 538.

Interpretation: notice of termination, article 13.02, 1

Layoff before 3 months of employment

According to the decree, the right to a notice of termination is acquired after 3 months. However, article 2091 of the Civil Code of Québec allows an employee who has less than 3 months of employment to claim an indemnity of notice. The claim must be made in Small Claims Court (see the section “useful links”).

However, the employee will have to show that he or she suffered a wrong, a prejudice, a damage. For example, an employee who would have left a good, well-remunerated employment, against a promise of employment from his or her new employer, could claim damages if the new employer released the employee at the end of two months.

In the same way, in the case of a contract of determined duration, whether it is verbal or written, if the employer released an employee before the end of the contract, the latter could show that a prejudice was suffered.

Calculation of three months of uninterrupted service

Article 13.02 1)provides that article 13.01 does not apply to the employee who has less than 3 months of uninterrupted service.
The uninterrupted service must de calculated according to the civil calendar.

For example, an employee having worked from October 29, 2003 to January 28, 2004, would miss one day of service to qualify for a notice of termination.

Interpretation: notice of termination, article 13.02, 3

Definition of a serious fault

The following case law defines the serious fault very well (translated from the original case law in French):

…to dismiss an employee without notice, it is not enough for the employer to establish slight or minor fault or a simple legal justification. It takes a serious fault “which makes an immediate termination essential” following “acts of misconduct of serious gravity”. It could be an unforgivable incident so serious that it requires the dismissal of the employee on the spot or a series of less important facts or a behavior that the employee will repeat despite one or more serious warnings. Cases of insubordination, absenteeism, repeated lateness or other repetitive faulty acts are part of this second category, while in the first category, are classified all acts so reprehensible that they the employer can not have confidence in the employee afterwards. These descriptions are evidently incomplete and each case has to be studied according to all the circumstances.(p.23)

Labor Standards Commission c. Beverini Inc.
Provincial Court (Montreal)
September 16, 1982500-02-039690-818

En matière disciplinaire, la jurisprudence a accepté l’application de la théorie de l’incident culminant pour conclure qu’une accumulation de gestes ou comportements peut constituer en soi une faute grave.

In disciplinary matters, case laws apply a culminating incident theory to conclude that an accumulation of gestures or behaviors can in itself constitute serious fault.

Examples of serious faults:

    • Theft and fraud
    • Alcoholism at work
    • Assault on a superior
    • Willful damage to employer property
    • Conflict of interest or competition with the employer
    • Sleeping at work

Interpretation: notice of termination, article 13.02, 4

Definition of fortuitous event

We will define fortuitous event by the negative.

1st example: The customer who puts an end to the contract of the contractor in a sudden way, because he is dissatisfied, does not constitute a fortuitous event.

2nd example: A ski centre which puts an end to the contract of the contractor in a sudden way, because an early spring produces a drop of business, does not constitute a fortuitous event. It is up to the contractor to negotiate a notice with its customer, at the signature of the contract.

3rd example: A contractor in window washing who does not receive any more orders because of an early winter, does not constitute a fortuitous event.

In all these cases the contractor must give a notice of termination to his employee, and give him or her work on another contract. If not, he must pay the equivalent indemnity of notice.

Examples of fortuitous events are the fire of the building, a flood, finally all that arrives by chance, and which was really impossible to plan for, which is not the case of the 3 examples mentioned above.

Article 1470, 2nd subparagraph of the Civil Code of Québec, declares that the fortuitous event is synonymous with a circumstance beyond one’s control. It is an unforeseeable and irresistible event.

A strike at the customer’s place of business constitutes a fortuitous event.

Interpretation: notice of termination, article 13.03

1. Calculation of the severance pay

  1. If the employee has a usual schedule, the number of usual working hours is multiplied by the number of weeks due, even if there may have been variations in the schedule over the past few weeks.
  2. If there is no usual schedule, the average of the last 4 weeks can be calculated.

2. Severance pay and last day of work

The payment of the termination notice is a compensatory indemnity

When the compensatory indemnity is paid, the last day of work remains the last day actually worked and not the last day of the period covered by the payment of the indemnity.

This clarification is important in the case of the right to statutory holidays and the right to excess sick hours.