Le Code civil du Québec et la Loi sur les normes du travail : convergence ou divergence?

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1 Document generated on 08/21/2018 7:27 p.m. Relations industrielles Le Code civil du Québec et la Loi sur les normes du travail : convergence ou divergence? Jean-Yves Brière

2 Volume 49, Number 1, 1994 URI: id.erudit.org/iderudit/050920ar DOI: /050920ar See table of contents Publisher(s) Département des relations industrielles de l Université Laval ISSN X (print) (digital) Explore this journal Cite this article Brière, J. (1994). Le Code civil du Québec et la Loi sur les normes du travail : convergence ou divergence?. Relations industrielles, 49(1), doi: /050920ar Tous droits réservés Département des relations industrielles de l'université Laval, 1994 Article abstract The purpose of the new Civil Code of Quebec is to adapt the general law to the context of the Quebec reality at the dawn of the twenty-first century. It is of the utmost importance for all citizens. Needless to say, the Code will directly affect labour legislation. The proposed analysis sets forth the consequences of the new Civil Code on the Labour Standards Act and, conversely, the incidence of the Labour Standards Act on the understanding of the applicable provisions of the Code. The analysis is both comparative and prospective. Six items are analysed for comparison purposes: the preeminence of the enactments, the concept of employee, the concept of continuous service, the breach of the employment relationship, the certificate of employment and the alienation of an undertaking. The preeminence of the enactments. In case of insurmountable conflict, the Labour Standards Act should prevall over the general law as codified. Because the standards enacted are of necessary application, the Labour Standards Act shall apply notwithstanding the Civil Code of Quebec.The concept of employee. The two legislative enactments (art C.C.Q. and s. 1(10) L.S.A.), if read together, show various similarities (requirement of masterservant relationship, no particular formality is required, forms of compensation are various, etc.). The two enactments contemplate the same reality. Moreover, the standards developed by the case law under the Labour Standards Act will be very useful for distinguishing between the employee and the independent contractor, as defined in the Civil Code.The concept of continuous service. The analysis highlights the weak points resulting from the combined effect of arts and 2091 C.C.Q. Thus, it may be possible for an employer to avoid the tacit renewal by granting a series of fixed term contracts. This way, the employer would not be bound to pay an indemnity in lieu of a notice of termination in case of termination. This solution chosen by the legislator is hardly compatible with the letter, the meaning and the spirit of s. 124 L.S.A. Breach of the employment relationship. Under this heading, the comparison of the applicable sections raises some questions : How to reconcile the serious reason specified in article 2094 C.C.Q. and the concept of serious fault (s L.S.A.)? How to reconcile the serious reason and the concept of good and sufficient cause (s. 124 L.S.A.)? Does the payment of an indemnity by the employer pursuant to s. 82 L.S.A. exclude a claim for a notice of termination based on art C.C.Q.?The certificate of employment. The Civil Code states in art that upon termination of an employment contract, the employer shall provide the employee with a certificate of employment. Such a certificate is also required under the Labour Standards Act. Here again this doubling raises questions : Is it possible to add comments on the quality of work done by the employee? Which consequences result from the fallure to provide this document?alienation of an undertaking. Article 2097 of the Civil Code supplements ss. 96 and 97 L.S.A. by protecting the employment contract. It will now be possible to argue that the purchaser of an undertaking will be bound to explain the grounds justifying a dismissal which occurred immediately before the sale of the undertaking. Such a proof will be made in the context of a complaint of dismissal without a good and sufficient cause (s. 124 L.S.A.). From this analysis, the author draws certain conclusions : Case law relating to the Labour Standards Act will be very useful to the interpretation of the Civil Code. The links between certain provisions justifies this approach. The relationship of some provisions (art C.C.Q.) with others contained in the Labour Standards Act (s. 82.1) is not clear. The contribution of case law which provides a liberal and extensive interpretation of the Labour Standards Act will likely have a material impact on the interpretation of the chapter of the Civil Code relating to the employment contract. The new Code does not lighten the burden of the citizen in case of dismissal. It would have been desirable to unify the applicable rights and remedies. This document is protected by copyright law. Use of the services of Érudit (including reproduction) is subject to its terms and conditions, which can be viewed online. [ This article is disseminated and preserved by Érudit. Érudit is a non-profit inter-university consortium of the Université de Montréal, Université Laval, and the Université du Québec à Montréal. Its mission is to promote and disseminate research.

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