Act respecting labour standards Chapter IV - Larbour standards (Section 39.1 to 97)

Exceptions

Section 82 does not apply to an employee:

1. who has less than three months of uninterrupted service;
2. whose contract for a fixed term or for a specific undertaking expires;
3. who has committed a serious fault;
4. for whom the end of the contract of employment or the layoff is a result of superior force.

1990, c. 73, s. 36.

Interpretation

Junior and intermediary managers benefit from this provision (see the interpretation of paragraph 6) of section 3 and that of subparagraph 3) of section 54 ALS).

However, section 82 ALS does not apply to the following employees:

1. an employee who is not credited with three months of uninterrupted service;
   See the interpretation of "uninterrupted service" in paragraph 12) of section 1 ALS.
2. an employee whose contract for a fixed term or for a specific undertaking expires;

   Contract for a fixed term

   A contract for a fixed term is a contract under which an employee is hired for a predetermined, fixed term, at the end of which the contract automatically expires without the employer being obliged to renew it.

   Example

   An employee was hired as a replacement by the employer from May 1, 2010 to November 30, 2011. On that date, the employer who no longer requires the employee’s services does not have to give him a notice under section 82 ALS, as the parties entered into an agreement whereby the contract expired on November 30, 2011.

   A succession of contracts for a fixed term may constitute one contract of indeterminate length (see the interpretation of the notion of "uninterrupted service" in paragraph 12) of section 1 ALS). The performance of work then becomes continuous and the contracts are there only to specify the terms and conditions of this performance of work.

   According to the jurisprudence, a contract is considered to be of indeterminate length, except where there is proof to the contrary. The party that alleges the existence of a contract for a fixed term has the burden to prove its existence.

   Among the elements that may be considered in the qualification of the length of employer-employee relations, one finds, for example, an absence of formalities to be met between each renewal, the fact that the employee’s work tools remain on the employer’s premises or that his personal effects remain at the work station between each renewal, the fact that the employee could reasonably expect to be recalled.

   Specific undertaking

   An employee hired for a specific undertaking is an employee hired to perform a precise task, specific or defined work. Once this work has been completed, his employment ends. This could involve, for instance, an employee hired for the performance of a precise contract that the employer obtained or an employee who is hired to carry out a specific task (e.g. painting of a shed). In these cases, the employee does not necessarily know the exact length of his employment, but he knows that once the work for which he was hired is finished, his contract will end.

   When it is a contract for a fixed term or for a specific undertaking that is terminated before its expiry, section 82 ALS does apply, as the exception only concerns contracts that expire.

   Example

   An employer hires an employee for a two-year period, namely from January 1, 2010 to January 1, 2012.

   On June 1, 2011, the employer terminates the contract early without prior notice.

   The employee is entitled to an indemnity equal to two weeks of wages.

3. an employee who has committed a serious fault;
   A serious fault is a fault serious enough to make it indispensable to immediately terminate the work contract (ref.: judicial precedents). It should be noted that a fault on the part of the employee may constitute good and sufficient cause for dismissal without, however, corresponding to the notion of serious fault. In such a case, a notice is required.
4. an employee for whom the end of the contract of employment or the layoff is a result of superior force;
   Superior force refers to an event that is unforeseen and that is impossible to resist. The destruction by fire caused by lightening of the employer’s establishment would be an example of superior force preventing the employer from giving work.

   
   Resignation

   Moreover, the employer is also relieved from his obligation to give the notice stipulated in section 82 ALS in cases where an employee has resigned. The doctrine and jurisprudence consider that the intention to leave one’s job for good is a right that belongs to the employee. It is up to the employer to establish this resignation. It must be clear, manifest, voluntary and unequivocal. The resignation may not be presumed, except where the employee’s behaviour is incompatible with another interpretation. In case of ambiguity, the jurisprudence generally refuses to conclude that the employee did indeed resign.