The majority of the Court of Appeal recognized that its judgment sometimes risked putting the employee who resigned in a difficult situation. Indeed, the dismissed worker will be torn between his obligation of reasonable notice and the risk that the employer may waive it. In the latter case, the employee would risk being unexpectedly without remuneration for the rest of the notice. And what about workers who notify their employer of their retirement 12 months in advance? Are they at risk of losing their 12-month salary if the employer gives up firing? The Court of Appeal mentioned that, in certain cases, the worker may claim damages on the ground that the employer has exercised his right of renunciation abusively. However, such a remedy remains hypothetical and would obviously be costly and delayed by legal proceedings. Recently, the Quebec Court of Appeal1 overturned this general rule by deciding that an employer could waive the right to dismiss. The Court notes that, in such a case, the resignation takes effect immediately and does not entail the employer`s obligation to pay severance pay. The majority2 of the Court of Appeal stated that the obligation to dismiss the worker offers protection to the employer because it allows a reasonable period of time to find, hire and train a new employee. However, the employer may waive this protection and, in this case, there is no reason for the resignation to result in dismissal resulting in severance pay. The employer`s obligation to grant a reasonable period of notice in the event of dismissal of a worker without notice without justification has its legal equivalent in the obligation for the worker to give a reasonable period of notice. While in the event of dismissal, the worker may claim damages without cause instead of an appropriate dismissal, the employer may, on the other hand, demand from the worker any damage resulting from his unreasonable period of notice before leaving the company.
2 One of the three judges disagreed with the approach taken as to the possibility for the employer to refuse dismissal without being required to pay compensation to the employee. In the end, the majority of the Court of Appeal decided that the employer could now waive a dismissal without being required to pay wages until the end of the notice period. Only legislative changes could change this situation. I am resigning as Chief Executive Officer and member of the Board of Directors of Wild Oats Markets, Inc. with effect from the above-mentioned date. (the “Company”) and any other capacity I have with the Company and its direct and indirect subsidiaries and related enterprises. As I have already said, I am resigning because the company and I have not been able to agree on the terms of a new or amended employment contract. The document is a unilateral document in favor of the company from which the employee or director is withdrawing.
Certain declarations of resignation, release and waiver may be made with respect to separate documents, such as a letter of termination or a share purchase agreement. It will be interesting to see how this case is applied by the courts. Some might say that the Court of Appeal has created some uncertainty. Workers face the difficult dilemma of giving a reasonable period of notice as they take the risk that the employer will immediately waive their dismissal and immediately stop paying their wages. At the same time, employers must decide whether they want to waive the notice period without guarantee as to whether such a waiver could constitute an abuse of the worker. . . .