'Abuse of power': Quebec court rules against employer in lawsuit against migrant workers

Court says 'outrageous outcome would, in a sense, constitute a form of financial intimidation'

'Abuse of power': Quebec court rules against employer in lawsuit against migrant workers

A Quebec court recently turned the tables on an employer that sued two of its workers in a Temporary Foreign Workers (TFW) Program case.

Amec Machining sued two workers – Cleverson Eliseu Ribeiro de Lima and Ivan Goulart de Araujo, who are both from Brazil – after they resigned from their posts with shortened notice periods.

Amec – which manufactures high-precision parts for various industries – hired de Lima and Araujo as Level II junior machinists in 2018, offering them a contract from March 1, 2018 to Feb. 28, 2021.

However, Araujo resigned in July 2019, providing nine days’ notice, while De Lima resigned in August 2020, offering to work through the week.

The employer was requiring eight weeks’ notice.

On Dec. 18, 2020, AMEC had a bailiff serve a formal notice to de Araujo, which states: “During this period of eight (8) weeks, our client estimates her loss of income, caused exclusively by your resignation in breach of your legal obligations, at an amount of $ 58,560.00, less $ 8,960.00, which is the salary that would normally have been paid to you during this period, including social security contributions and applicable fringe benefits.”

Notice periods reasonable: court

The Court of Quebec, however, rejected Amec’s claims, ruling that the notice periods provided were reasonable based on their positions and length of service. It determined that their junior-level machinist roles did not require the length of notice demanded by the company.

“Without minimising the nature of their work, it seems clearly exaggerated to claim that they occupied a ‘strategic’ or ‘critical’ position in the company, given their level and the number of machinists employed by AMEC,” said Justice Christian Brunelle in the decision.

The court also found that the employer’s claim was “such a departure from existing case law that the outrageous outcome would, in a sense, constitute a form of financial intimidation,” noted Fasken associates Elisabeth Bouffard and Frédéric Magnan in a post.

Employers should be aware that “significant notice periods can be awarded when older, long-term employees are dismissed without cause,” Alex Minkin, associate lawyer at Rudner Law in Toronto, previously noted in a Canadian HR Reporter article.

Court fines employer for abuse of power

The court further found that Araujo had “serious reason” to resign immediately, as he was not receiving the wages outlined in his employment contract.

He testified that he had raised the issue multiple times with management but was told, “Either that or you go back to Brazil.” The court ruled that this statement constituted an implicit threat, given the restrictions of his closed work permit.

The ruling also determined that Amec’s decision to pursue legal action was an abuse of process. The company only took legal steps against Araujo and De Lima after Araujo filed a complaint with Quebec’s workplace standards board, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST), regarding unpaid wages.

In December 2019, the CNESST launched a claim on Araujo’s behalf, demanding $15,861.67 in unpaid wages and $654.72 for vacation pay. The dispute was later settled out of court, with Amec issuing a cheque for $9,291.17 in October 2020. However, Araujo testified that he was required to collect the cheque in person and was warned, “Don’t spend this money too quickly.”

Two months later, in December 2020 – 17 months after Araujo’s departure – Amec sent bailiffs to serve formal notices to the former employees, demanding payment of sums exceeding their annual salaries. The notices required payment within five days, just before Christmas. The court described the timing as “rather intended to make a strong impression on its recipients and to satisfy a certain vengeance.”

The ruling also found that Amec knowingly circumvented wage regulations and used legal action as a form of retaliation.

The employer’s actions towards the workers were found to be an abuse of power, noted the Fasken associates. Based on the evidence presented, the court found the employer had:

  • claimed damages in excess of their annual salaries
  • 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
  • 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.

The court then ordered Amec to pay de Lima the sum of $7,500, with interest calculated at the annual legal rate of 5%, plus the additional compensation referred to in article 1619 of the Civil Code of Québec, as of Nov. 12, 2021; and the sum of $22,652.16, with interest calculated at the annual legal rate of 5%, plus the additional compensation referred to in article 1619 of the Civil Code of Québec, as of Nov. 12, 2021.

Compliance reminders for employers

Following the case, Bouffard and Magnan of Fasken reminded employers of the following:

  • Employers must respect promised working conditions and ensure compliance with applicable labour standards.
  • Employers must ensure that foreign workers fully understand the terms of their contracts, particularly where there are language barriers.
  • 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.
  • 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.

The federal government has banned a total of 20 employers from using the TFW Program as it intensifies its efforts to protect the health and safety of temporary foreign workers. The number comes from the inspections conducted by Employment and Social Development Canada (ESDC) between April 1 and Sept. 30, 2024.

Previously, Syed Hussan, executive director at Migrant Workers Alliance for Change, described the system that governs migrant workers' employment in Canada as “systemic slavery”. Ottawa has since introduced significant changes to its TFW Program, aimed at safeguarding Canadian workers while continuing to protect migrant workers from potential fraud and exploitation.

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