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.
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.