Fragile Transplants: Adapting Employment Agreements to Québec

Where an employment agreement has not been properly drafted or adapted for use in Québec, problems may arise with respect to its enforceability. This is therefore an important consideration for employers on the move or with employees in several jurisdictions.

Québec is the only jurisdiction in Canada in which laws govern the use of language in the employment relationship, including in the drafting of the employment agreement. Québec is also unique in Canada as the only employment law jurisdiction that draws its fundamental contract law principles from the civil law rather than the common law tradition.

Employers generally aim to use uniform and consistent employment agreements throughout their operations; however, it is important to ensure that employment agreements are properly adapted to the applicable laws of the appropriate jurisdiction. This is all the more essential where an agreement drafted under the laws of another province or country is to be used in Québec.

The first step to successfully adapting an employment agreement to the laws of Québec involves getting the language right. Under the Québec Charter of the French Language, employment agreements must be drafted in French unless it is the express will of the parties that they be drafted in English or another language. There must be genuine consent; an employer cannot impose an English-language contract, and an employee’s preference for a French-language employment contract must be respected. It is therefore a standard practice to include a clause in an English-language agreement whereby the employee explicitly acknowledges that the contract has been drafted in English at the express will of both parties.

When it comes to drafting the substantive content of the agreement, Québec law has a number of unique features, particularly with regard to termination provisions. While it may be possible in other Canadian jurisdictions for an employment agreement to validly limit a dismissed employee’s entitlement to notice of termination to the minimum notice required by statute, this is generally not possible in Québec. The Civil Code of Québec specifically provides that an employee cannot renounce his or her right to obtain compensation for any injury that he or she suffers where insufficient notice of termination is given or where the contract is terminated in an abusive manner.

Often, contracts drafted for common law jurisdictions include language to the effect that the employee may be dismissed at any time, for any reason, on reasonable notice. Such a provision may not be enforceable in Québec if the employee has at least two years of uninterrupted service for his or her employer. The Québec Act Respecting Labour Standards provides that an employee with at least two years of service has a right to be reinstated in his or her position if he or she is dismissed without good or sufficient cause. The most notable category of staff excluded from this protection is senior managerial personnel.

Of course, employment standards and rules vary from jurisdiction to jurisdiction, which may impact the drafting of an employment agreement. Applicable legislation in each jurisdiction provides differently for standards including minimum wage, hours of work, overtime, vacation, vacation pay, and leaves. For example, in Québec, entitlement to minimum annual vacation is acquired progressively during a period called the reference year. The reference year runs from May 1 to April 30 unless it is otherwise fixed in an employment agreement. This is just one of many employment standards issues that may need to be considered when an agreement is being drafted or reviewed for compliance with Québec law.

Tips for Employers

Employment agreements must be carefully drafted to ensure they are valid and enforceable in the relevant jurisdiction. If you would like to use an existing employment agreement in a new jurisdiction, it is essential to take the time to have the agreement thoroughly reviewed and redrafted, if required, to ensure compliance with Québec law.