Two employees hired through the Temporary Foreign Worker Program (“TFWP”) and who were being sued by their employer for damages and inconvenience suffered as a result of their resignation were instead awarded more than $30,000 in damages and extrajudicial fees to be paid by their former employer.[1]
This decision, handed down in October 2024 by Judge Christian Brunelle of the Court of Québec, cautions employers recruiting foreign workers under closed work permits on how to manage the employment relationship and on terminating the employment contract.
1. BACKGROUND
In 2017, the Employer commenced the international recruitment process that led to the hiring of the two Defendants, Ivan and Cleverson (“the Workers”), each under a 36-month closed work permit.
The Workers resigned within months of each other in 2019 and 2020. The Employer claimed that Ivan’s resignation caused a temporary stoppage of machinery, forcing it to use subcontractors for nearly two years. As for Cleverson’s resignation, the Employer alleged that it caused a slowdown in production resulting in delivery delays of several weeks.
2. THE PARTIES’ POSITIONS
The Employer claimed it suffered a significant loss of income due to the Workers, both machinists, leaving without providing reasonable notice. According to the Employer, the notice period should have been 8 weeks. In the principal action, the Employer claimed the sum of $52,604.80 from Ivan and $49,600.00 from Cleverson.
The Workers argued that they had grounds for unilaterally terminating the employment contract without notice, namely the Employer had failed to comply with the conditions set out in the employment contract. The Workers then filed a counterclaim in which each claimed $20,000 in damages “for nuisance, disturbance and inconvenience” as well as their extrajudicial fees.
3. THE COURT’S ANALYSIS
The Nature of the Employment Contract
Although the work permits were for a 36-month period, neither of the parties disputed that the employment contracts were for an indefinite term.
The Employment Relationship With a Foreign Worker
The Court found it was crucial to consider the issues in dispute in light of the difficulties faced by foreign workers, such as their vulnerability due to isolation, cultural and linguistic barriers, and their unfamiliarity with the host country’s laws. The Court added: [translation] “This vulnerability [of foreign workers] is even greater when the “closed” work permit granted by the host country authorizes them to work only for the designated employer, without regard to the “freedom to work” that is recognized for all humans.”[2]
Reasonable Notice Period for Resignations
The Court pointed out that, in the case of an indefinite-term employment contract, the obligation to give notice of termination of employment is bilateral[3] and the length of such notice must be reasonable based on (i) the nature of the employment, (ii) the specific circumstances and (iii) the duration of the period of work.
However, the Court did not accept the Employer’s claim that the Workers were obliged to give 8 weeks’ notice of resignation, in particular because:
- the positions held by the two Workers could not be considered strategic or critical for the company, as the Employer already had 15 to 20 machinists employed;
- the Workers were unable to understand the terms of their employment contract due to their limited command of French, especially since the Employer failed to respect the terms of the job offer validated by the immigration authorities;
- the period of time worked was relatively short for both Workers.
In fact, the Court found that the Employer’s claim was [translation] “such a departure from existing case law that the outrageous outcome would, in a sense, constitute a form of financial intimidation.”[4]
Ivan's Case – There Was a Serious Reason for Termination
The Court found that the 9 days’ notice of resignation given by Ivan was reasonable in the circumstances.
Moreover, Ivan had a serious reason to unilaterally terminate his employment contract. The worker had made repeated requests for a standard 40-hour work week, while the Employer had continued to impose a 50-hour work week. The Employer responded to Ivan’s requests by threatening to send him back to Brazil if he didn’t accept the proposed conditions.
Following his resignation, Ivan obtained an open work permit from the immigration authorities for foreign workers who were victims of financial exploitation and threats from their employers.[5] Ivan also received over $9,000 from the Employer in settlement of a complaint he had filed with the CNESST, which suggests that the Employer owed him an amount as salary.
Cleverson’s Case – Employer Had Waived the Notice Requirement
By simply asking Cleverson to complete his work week, the Employer had consented to the two days’ notice of resignation given by the worker. Given the circumstances, the Court concluded that Cleverson could reasonably believe that by doing so the Employer was waiving the right to a longer period of notice.
No Link Between the Resignations and the Employer’s Alleged Damages
The Court found that the Employer did not prove that there were any financial damages resulting directly from the Workers’ departure. The Employer acknowledged that it did not lose any customers and that there were only delivery delays. While the qualified candidates the recruitment agency proposed to replace the Workers refused the conditions offered by the Employer, this situation cannot be attributed to the Workers. The Court dismissed the Employer’s principal action.
Abuse of Power by Employer Towards the Workers
According to the Court, the steps taken by employers to welcome foreign workers can lead to certain expectations, which if not met, must not result in retaliatory actions being taken, as in the case at hand.[6]
The Employer’s actions towards the Workers were found to be an abuse of power. Based on the evidence presented, the Court found the Employer had:
- claimed damages in excess of their annual salary;
- required the Workers to come to its office to collect the cheque in settlement of the complaints filed with the CNESST, and warned them not to spend the money, as it would be returned to the Employer following its own lawsuit; and
- sent a demand letter to the Workers at the start of the holiday season, demanding payment a week later, despite the fact that the events had taken place almost a year and a half earlier.
Accordingly, the Court allowed in part the Workers’ counterclaims and assessed the moral injury they had suffered at $7,500 each.
Employer’s Abuse of the Right to Sue
The Court also found that the Employer had abused its right to sue. The economic inequality between the parties and the disparity between the amounts claimed made an out-of-court settlement impossible, forcing the Workers to incur considerable extrajudicial fees while preventing them from filing a claim in the Small Claims Division. The Employer’s claims were deemed excessive and unfair, driven by revenge or being used as retaliation.
The Court ruled that Ivan was entitled to the sum of $16,352.16 for the costs he unnecessarily incurred in defending his rights. Cleverson could not be compensated for his costs, as he failed to provide evidence of the professional fees he had allegedly paid.
4. TAKEAWAYS FOR EMPLOYERS
Respect Working Conditions: Employers must respect promised working conditions and ensure compliance with applicable labour standards. Changing conditions after an employee is hired may not only constitute serious grounds for resignation but also non-compliance with labour standards and the TFWP.
Good Understanding of Employment Contract: Employers must ensure that foreign workers fully understand the terms of their contracts, particularly where there are language barriers.
Notice of Resignation: In the case of an indefinite-term employment contract, employers can require a notice of resignation that is reasonable in the circumstances. In the case at hand, the 8 weeks’ notice required by the Employer was deemed excessive. Where there are serious grounds for termination, an employee may resign without giving notice.
Abuse of Power: Employers may be found guilty of an abuse of power and liable for damages and extrajudicial fees if they sue workers for failing to comply with a resignation notice period that the Courts consider excessive, for exaggerated damages or for using legal processes for vindictive purposes.
