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Temporary layoffs, recalling employees back to work in Quebec

Thursday, July 09, 2020 @ 11:22 AM | By Frank Schlesinger


Frank Schlesinger %>
Frank Schlesinger
In order to survive the economic effects of the COVID-19 pandemic, many businesses in Quebec laid off a substantial percentage of their workforce. In this time of uncertainty, it is important to understand the legal framework of layoffs in Quebec in order to allow companies to be equipped to call their employees back to work or legally terminate those employees permanently.

The layoff of an employee in Quebec (mise à pied temporaire) is a temporary suspension of the contract of employment between the employer and the employee. The contractual relationship that binds the employer and the employee is maintained for the duration of the layoff. As such, a laid off employee may be called back to work at any time. The employer is not responsible to pay out any amounts owing to a laid off employee so long as such layoff lasts no more than six months. In the event where the layoff lasts for a period of more than six months, the employee will be deemed to have been terminated and the employer will be required to pay out the employee’s severance.

The severance is an amount equal to such employee’s regular wage, excluding overtime, for a period equal to the period or remaining period of termination notice to which the employee was entitled.

The notice requirements for termination of an employee who has been laid off for six months are as follows:

  • No notice if the employee is credited with less than three months of uninterrupted service;
  • One week if the employee is credited with more than three months and less than one year of uninterrupted service;
  • Two weeks if employee is credited with one year to five years of uninterrupted service;
  • Four weeks if employee is credited with five years to ten years of uninterrupted service; or
  • Eight weeks if employee is credited with 10 years or more of uninterrupted service.

Therefore, should a layoff continue for a period longer than six months with respect to an employee who has worked for a given employer for at least two consecutive years, such employee is entitled to two weeks of remuneration by the employer. Further, at the time of the termination, the employer must ensure that the employee receives all of the sums owing to him by the employer including but not limited to any outstanding wages, outstanding overtime or any vacation indemnity. The indemnity relating to vacation is equal to four per cent of the gross wages earned by the employee during a given year if the employee has less than five years of service, or six per cent of the gross wages if the employee has five years of service or more at the end of a given year.

A notice of termination of employment is null if it is given to the employee while he is laid off, except in the case of a seasonal job, the length of which does not ordinarily exceed six months per year.

The above requirements of termination notice or payment in lieu thereof do not apply to employees whose employment contract provides a fixed term, to employees who have committed a serious fault or to employees for whom the end of the contract of employment or the layoff is a result of superior force (force majeure).

In the event that any employee is governed by a specific employment contract, it is important to determine whether the contract offers a greater remuneration or entitlement than that offered by the Labour Standards Act, in which case, the employee would be entitled to the greater amounts.

In the event that the employee refuses to return to work due to the pandemic, whether because the employee is ill or fears to return to work, the individual circumstances would have to be examined at the time and we would be pleased to help in that situation.

In the event that any recalled employee is collecting the Canada Emergency Response Benefit or employment insurance, it would be advisable to inform the employee that he/she may be required to inform the federal government of his/her recall and determine the impact, if any, on his/her continued eligibility for such programs.

Frank Schlesinger is a lawyer and trademark agent with Spiegel Sohmer. This article was prepared with the assistance of Talia Bensoussan, a commercial law lawyer with Spiegel Sohmer.

Photo credit / Oleksii Liskonih ISTOCKPHOTO.COM

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