WHAT IS THE DIFFERENCE BETWEEN LAYOFF, TEMPORARY LAYOFF AND DISMISSAL?

TERMINATION : the employer permanently severs the employment relationship with his employee for reasons such as economic, financial difficulties, technological innovations or job mergers. Can an employer justify the dismissal of an employee in the current context of COVID-19? Not everything is so black and white. An assessment must be made on a case-by-case basis according to each situation. However, if the company is unable to continue its activities during the current period of closure, confinement and social distancing, and it is able to demonstrate that its activities are significantly reduced, at that time, the dismissal may possibly be justified.

TEMPORARY LAYOFF : The employer temporarily suspends its employment contract with the employee. The employee may be recalled to work. The employee maintains his employment relationship for the duration of the layoff and his contractual relationship is maintained. According to the legislation, conditions apply depending on the duration of the layoff, otherwise a layoff may be deemed a dismissal or a dismissal.

DISMISSAL : The employer permanently terminates the employment relationship for reasons such as the employee's lack of skills or unacceptable behavior. This measure must be based on serious grounds and a just and sufficient cause, that is, the employer who carries it out must do so due to serious misconduct such as insubordination, incompetence or a serious breach of the employee's duty of loyalty. In the event of a dispute, the employer must demonstrate the just and sufficient cause for the dismissal or pay the necessary compensation.

CAN THE PANDEMIC BE DEFINED AS A FORCE MAJEURE?

According to the Civil Code of Quebec and case law, force majeure is an unforeseeable and irresistible event. The CNESST gives fire as an example of force majeure. That is, a fortuitous event that the employer cannot foresee. However, each dismissal or layoff situation that invokes force majeure must be rigorously analyzed in light of its facts.

Currently, this is the measure that seems to be most used by employers, especially in this context of economic uncertainty where it is difficult to establish the date of return to regular activities of the company. A temporary layoff allows the employer to assess the economic sustainability of the company on a regular basis. It can thus estimate its human resources needs and the direct consequences of job terminations on its production and make concrete decisions on the mobilization of its employees in the short and medium term. However, if the impact of the current context may endanger the solvency of the company, the employer may consider laying off employees.

HOW TO BE A GOOD CORPORATE CITIZEN?

Before proceeding with a layoff without notice of termination, the employer must look at the programs and support measures offered by the provincial and federal governments. For example, the Canada Emergency Wage Subsidy and the PACME program are in place to help employers keep their employees on the job during the COVID-19 crisis and to ensure their continuity following the gradual reopening of their businesses.

Being good pays off. The crisis will pass and employers will need good employees when they return to regular operations. We suggest implementing communication measures with employees, by following up by email, phone or videoconference to get your messages and vision across so that employees do not feel like they are in a vacuum.

Therefore, it is preferable for the employer to try to retain its employees either by temporary layoff or by using government assistance programs and measures, because dismissal is not always the best solution although it can provide financial and temporary relief to employers in the current context.

Be sure to consult your employment lawyer to help you decide these questions and to support you in your applications for the various programs and aid measures put in place, during this period that challenges even the strongest companies. Obtaining legal advice tailored to your situation and your sector of activity minimizes the risk of potential litigation.

*Note however that case law plays an important role in legal analysis and may provide different and broader rights than those provided by the Law.

My obligations as an employer

In the event of a dismissal or temporary layoff of more than six months, the employer is required to give written notice of termination of employment to an employee who has at least three months of service. This notice must contain the following essential information:

1. It must provide for a period of time for the employee to leave. Under the Act, the period between the notice of termination and the employee's departure varies according to the number of years of continuous service. This period may also be different depending on the case law applicable to each situation; and

2. The reason for termination of employment.

If the employer does not provide notice of termination of employment or does not provide it within the required time frame, the employer will have to pay compensation. Remember that in these difficult times, the employer should act as a good corporate citizen. This means that, in the context of social media and the rapid spread of information, it must be socially responsible by weighing each action with respect to its employees and its community. Employers must be willing to take good initiatives in order to have a positive impact on society.

This section does not constitute legal advice. Please consult a lawyer who practices employment law for advice or legal advice if you are faced with a situation or question similar to those presented below. Each situation is distinct and particular, depending on its context and the applicable facts. The answers below are general in the context of an employer and an employee under the Quebec jurisdiction.