Pre-notice in the event of collective dismissal
Background
Employers who have operations or employees based in Quebec should take note of recent proposed changes to the Labour Standards Act of Quebec (LSA).
The LSA’s main purpose is to stipulate minimum working conditions for employees in Quebec. Over the years, changes have been made to the LSA which address the reduction of the standard workweek, child labour and, more recently, the prohibition of differences in treatment found in written contracts called orphan clauses.The province is considering bringing into force amendments to the LSA, which deal with a variety of issues such as absence due to illness, maternity and parental leave, statutory holidays, termination for cause and, most importantly, the pre-notice required in the event of a collective dismissal, defined as 10 or more employees, due to economic difficulties.
The legislation: What Quebec’s changes mean for employers
While not all the changes may come into force, employers should be aware of the changes contemplated and the potential effect on your business.
•Statutory holidays with pay: The object of the amendment is to give certain atypical employees the benefit of paid holidays. Under existing legislation an employee is entitled to a paid holiday only if that day falls on her normal working day and the employee is credited with 60 days of uninterrupted service. For example if someone works Monday, Wednesday and Friday and the holiday falls on a Thursday, no holiday payment need be paid.
The proposed amendment would do away with the notion of “working day” in order for an employee to be eligible to receive a paid holiday and would eliminate the criterion of uninterrupted service.
•Absence due to illness or accident: The LSA prohibits an employer from dismissing, suspending or transferring an employee who has three months’ service for the reason of absence due to illness or accident, provided the absence is for not more than 17 weeks within a 12-month period. The proposal is to extend the period from 17 to 26 weeks within a 12-month period.
Currently if the absence due to illness or accident exceeds four weeks, the employer has the option of reinstating the employee in her former job or transferring the employee to a comparable position. It is proposed this option be abolished and the employee’s former position be guaranteed.
•Absence for parental or family reasons: The LSA now provides an employee may be absent without pay for up to five days per year in order to attend to the needs of her minor children due to unforeseeable circumstances beyond her control. The proposal is to extend the absences per year to 10 days and will include other family members, such as father, mother and spouse. In addition an employee may be able to request leaves of absence (without pay) totaling no more than 12 weeks within a 12-month period if a close family member requires their presence due to serious illness or accident.
•Parental leave: Parental leave is currently available for a period not exceeding 52 consecutive weeks and cannot begin prior to the date of birth or adoption of the child and must end no later than 70 weeks after. A parental leave of more than 12 weeks entitles an employer to offer a returning employee a comparable position to that which she occupied prior to departing rather than requiring the former position be guaranteed.
The proposed amendment would ensure the employee may return to her former position upon return from the parental leave even if it exceeds 12 weeks, up to a maximum of 52 weeks. The period during which the leave may be taken is proposed to be extended to 104 weeks following the birth or adoption of a child.
In addition, the proposed amendments provide for a paternity leave of five continuous weeks without pay. The leave begins no earlier than the date of birth or adoption of the child and must be taken within 52 weeks.
•Recourse due to termination: Currently, employees — other than upper management — who have at least three years of uninterrupted service with an employer may avail themselves of the provisions of the LSA which allow for a complaint to be filed against their former employer and to seek reinstatement in the event of dismissal without good and sufficient cause. The requisite uninterrupted service with the employer is proposed to be shortened to two years in order to exercise this recourse.
•Psychological harassment: It is proposed that a new recourse be made available to employees who believe they may be victims of psychological harassment in the workplace. An employee who believes she is the object of such harassment may file a complaint with the Commission des normes du travail within 90 days of the last act they believe constituted psychological harassment.
If the complaint of the employee is determined to be well founded, an employer may be ordered to cease and desist. If the employee resigned as a result of the harassment, the commission may order reinstatement with reimbursement of all lost wages — or damages for loss of employment — as well as moral and punitive damages and payment for counseling services.
•Collective dismissal: An additional critical amendment which is being proposed would “combine” for collective notice purposes the LSA and the Vocational Training and Qualification Act (the Manpower Act). Currently, the Manpower Act dictates that in the event an employer is required for economic reasons to conduct a permanent layoff (six months or longer) of a group of employees exceeding nine in number, a prior notice must be sent (save in limited and exceptional circumstances) to the government advising of such a layoff and its anticipated date.
The existing notices are:
•two months for a layoff of 10 to 100 employees;
•three months for a layoff of 100 to 300 employees; and
•four months for a layoff of 300 or more employees.
This notice is required in addition to any individual notice of termination or payment of severance in lieu thereof required to be given under the LSA. But it should be noted that the notices, when given, would run concurrently.
Until a recent court decision to the contrary, it was generally accepted that the Manpower Act provided no recourse in the event an employer violated the law, other than a penal recourse. That is to say, the employees had no individual or collective recourse against their former employer seeking compensation for lost wages due to insufficient or lack of notice.
Under the suggested amendment if employees who are laid off are neither given the requisite pre-notice nor permitted to work during the notice period, the commission would be authorized to pursue the employer for the equivalent of what the employee would have earned had the pre-notice requirements been respected.
The foregoing is intended merely as a brief overview of some of the contemplated amendments to the LSA. Certain amendments are industry specific and may affect the way certain employers conduct their business.
This in-depth look at proposed changes to Quebec’s Labour Standards Act was provided by Joel Weitzman, an employment law lawyer with Dunton Rainville in Montreal. He can be reached at (514) 866-6743.
Employers who have operations or employees based in Quebec should take note of recent proposed changes to the Labour Standards Act of Quebec (LSA).
The LSA’s main purpose is to stipulate minimum working conditions for employees in Quebec. Over the years, changes have been made to the LSA which address the reduction of the standard workweek, child labour and, more recently, the prohibition of differences in treatment found in written contracts called orphan clauses.The province is considering bringing into force amendments to the LSA, which deal with a variety of issues such as absence due to illness, maternity and parental leave, statutory holidays, termination for cause and, most importantly, the pre-notice required in the event of a collective dismissal, defined as 10 or more employees, due to economic difficulties.
The legislation: What Quebec’s changes mean for employers
While not all the changes may come into force, employers should be aware of the changes contemplated and the potential effect on your business.
•Statutory holidays with pay: The object of the amendment is to give certain atypical employees the benefit of paid holidays. Under existing legislation an employee is entitled to a paid holiday only if that day falls on her normal working day and the employee is credited with 60 days of uninterrupted service. For example if someone works Monday, Wednesday and Friday and the holiday falls on a Thursday, no holiday payment need be paid.
The proposed amendment would do away with the notion of “working day” in order for an employee to be eligible to receive a paid holiday and would eliminate the criterion of uninterrupted service.
•Absence due to illness or accident: The LSA prohibits an employer from dismissing, suspending or transferring an employee who has three months’ service for the reason of absence due to illness or accident, provided the absence is for not more than 17 weeks within a 12-month period. The proposal is to extend the period from 17 to 26 weeks within a 12-month period.
Currently if the absence due to illness or accident exceeds four weeks, the employer has the option of reinstating the employee in her former job or transferring the employee to a comparable position. It is proposed this option be abolished and the employee’s former position be guaranteed.
•Absence for parental or family reasons: The LSA now provides an employee may be absent without pay for up to five days per year in order to attend to the needs of her minor children due to unforeseeable circumstances beyond her control. The proposal is to extend the absences per year to 10 days and will include other family members, such as father, mother and spouse. In addition an employee may be able to request leaves of absence (without pay) totaling no more than 12 weeks within a 12-month period if a close family member requires their presence due to serious illness or accident.
•Parental leave: Parental leave is currently available for a period not exceeding 52 consecutive weeks and cannot begin prior to the date of birth or adoption of the child and must end no later than 70 weeks after. A parental leave of more than 12 weeks entitles an employer to offer a returning employee a comparable position to that which she occupied prior to departing rather than requiring the former position be guaranteed.
The proposed amendment would ensure the employee may return to her former position upon return from the parental leave even if it exceeds 12 weeks, up to a maximum of 52 weeks. The period during which the leave may be taken is proposed to be extended to 104 weeks following the birth or adoption of a child.
In addition, the proposed amendments provide for a paternity leave of five continuous weeks without pay. The leave begins no earlier than the date of birth or adoption of the child and must be taken within 52 weeks.
•Recourse due to termination: Currently, employees — other than upper management — who have at least three years of uninterrupted service with an employer may avail themselves of the provisions of the LSA which allow for a complaint to be filed against their former employer and to seek reinstatement in the event of dismissal without good and sufficient cause. The requisite uninterrupted service with the employer is proposed to be shortened to two years in order to exercise this recourse.
•Psychological harassment: It is proposed that a new recourse be made available to employees who believe they may be victims of psychological harassment in the workplace. An employee who believes she is the object of such harassment may file a complaint with the Commission des normes du travail within 90 days of the last act they believe constituted psychological harassment.
If the complaint of the employee is determined to be well founded, an employer may be ordered to cease and desist. If the employee resigned as a result of the harassment, the commission may order reinstatement with reimbursement of all lost wages — or damages for loss of employment — as well as moral and punitive damages and payment for counseling services.
•Collective dismissal: An additional critical amendment which is being proposed would “combine” for collective notice purposes the LSA and the Vocational Training and Qualification Act (the Manpower Act). Currently, the Manpower Act dictates that in the event an employer is required for economic reasons to conduct a permanent layoff (six months or longer) of a group of employees exceeding nine in number, a prior notice must be sent (save in limited and exceptional circumstances) to the government advising of such a layoff and its anticipated date.
The existing notices are:
•two months for a layoff of 10 to 100 employees;
•three months for a layoff of 100 to 300 employees; and
•four months for a layoff of 300 or more employees.
This notice is required in addition to any individual notice of termination or payment of severance in lieu thereof required to be given under the LSA. But it should be noted that the notices, when given, would run concurrently.
Until a recent court decision to the contrary, it was generally accepted that the Manpower Act provided no recourse in the event an employer violated the law, other than a penal recourse. That is to say, the employees had no individual or collective recourse against their former employer seeking compensation for lost wages due to insufficient or lack of notice.
Under the suggested amendment if employees who are laid off are neither given the requisite pre-notice nor permitted to work during the notice period, the commission would be authorized to pursue the employer for the equivalent of what the employee would have earned had the pre-notice requirements been respected.
The foregoing is intended merely as a brief overview of some of the contemplated amendments to the LSA. Certain amendments are industry specific and may affect the way certain employers conduct their business.
This in-depth look at proposed changes to Quebec’s Labour Standards Act was provided by Joel Weitzman, an employment law lawyer with Dunton Rainville in Montreal. He can be reached at (514) 866-6743.
