Pour réclamer une indemnité de départ au Québec, encore faut-il que les lois du Québec s’appliquent

Par Me Paul-Matthieu Grondin

Dans la décision Glanzer c. Construction Kiewit Cie de la Cour supérieure, un employé qui travaillait sur un des grands chantiers de construction du Québec des dernières décennies ne reçoit peu ou pas d’indemnité de départ alors qu’on retient que son employeur n’est pas québécois, mais plutôt américain, un cadre juridique moins favorable aux employés. Les prétentions de l’employé étaient telles que les affaires de son employeur américain se fondaient dans les affaires d’une compagnie québécoise reliée, le rendant éligible à une indemnité de départ en droit québécois.

Le juge en a décidé autrement sur les bases de la preuve présentée, du fait qu’une certaine mobilité était généralement demandée aux employés de cette compagnie et du concept juridique selon lequel la relation employeur-employé doit tendre vers la stabilité, plutôt que de changer au gré de certains aléas dus à cette mobilité.

Voyez le passage pertinent :

[43]        In addition to the fact that he considers CKC to have been one of his employers while he worked on the Project, Glanzer argues that he habitually carried out his work in the province of Québec during this period such that the law of Québec applies to his employment relationship with the defendants.

[44]        The starting point to the analysis is found at article 3118 C.C.Q.:

3118. The choice by the parties of the law applicable to a contract of employment cannot result in depriving the worker of the protection afforded to him by the mandatory rules of the law of the State where the worker habitually carries out his work, even if he is on temporary assignment in another State or, if the worker does not habitually carry out his work in any one State, of the law of the State where his employer has his domicile or establishment.

In the absence of a designation by the parties, the law of the State where the worker habitually carries out his work or the law of the State where his employer has his domicile or establishment is, in the same circumstances, applicable to the contract of employment.

[45]        As the parties did not designate the applicable law, the second paragraph applies. It refers to two distinct possibilities:

1. the law of the state where the worker habitually carries out his work; or
2. the law of the state where his employer has his domicile or establishment.[28]

[46]        In the case of an employee who is mobile, Professor Gérald Goldstein reasons that the law of the employer’s domicile or establishment should apply such as to provide stability in the employment relationship.[29] This is consistent with an employer’s need to manager a mobile workforce[30] and thus avoid the multiplicity of legal regimes where employees are required to move from one location to another while in the same occupation.

2.3  Discussion

[47]        Because of the nature of its activities, KB&M maintains a mobile workforce. Once the construction of a project is completed, its employees are deployed back to its head office in the State of Washington or to another project location. The length of an assignment depends on a number of factors, including the role of an employee on a given project, the complexity of the project and its progress.

[48]        The Kiewit Group of companies also rotates its employees to different projects such as to provide them with ongoing training, work experience and career development.

[49]        Before working on the Project, Glanzer was assigned to projects in different locations including the Benicia Bridge project in California, the A-25 project in Québec, the KB&M head office in Washington State and the Kamehameha & Farrington rail project in Hawaii.[31] He was well aware that each assignment was temporary and understood that he could be transferred to another project or be asked to return to KB&M’s head office in the State of Washington. It had been the case since he joined KB&M. 

[50]        Although while on the Project, Glanzer’s day-to-day tasks were indeed performed in Québec, this remained a temporary assignment. In addition to the fact that he required a visa to work in Canada, he was paid in U.S. currency and received a number of employment benefits directly related to the fact that he was an expatriate employee. These included moving expenses, a housing allowance, a tax equalization program and a job premium.[32] In addition, his insurance benefits continued to be provided by KIWC’s insurance provider in the United States.

[51]        The structure of the employment relationship, and more particularly the temporary nature of assignments, is such that it cannot be said that Glanzer habitually carried out his work in the province of Québec. 

[52]        This employment relationship is consistent with the legislative objective set out in the second paragraph of article 3118 C.C.Q. pursuant to which, in some circumstances, such as in the case of a mobile workforce, the law of the employer’s domicile or establishment should apply. 

[53]        Hence, the law of KIWC’s domicile in the State of Washington apply to Glanzer’s employment relationship.