Par Me Paul-Matthieu Grondin
Dans Bahadur c. Abilis Solutions inc., une décision de la Cour supérieure, on accorde 4 mois d’indemnité de départ après 1 an d’emploi à une gestionnaire d’affaires.
Le point d’intérêt de ce jugement réside dans l’importance qu’on accorde aux années de services précédant l’emploi en question quand on a été débauché. Ici, nous sommes dans une situation où le démarchage et, ainsi, le débauchage (des mots d’une douceur douteuse à l’oreille) ne sont pas d’une clarté limpide. Ainsi, la juge semble trancher la poire en deux, et accorde une certaine importance au principe de l’antériorité :
[32] She wishes that her 10 years of service for ULS (her prior employer) be recognized for the purpose of determining the reasonable severance to which she was entitled. Defendant disagrees with such approach as it considers that it did not put pressure on Plaintiff to change jobs as she obviously wished to “try something new” and wanted a “new challenge”.
[33] Both parties thought appropriate (as a good rule of thumb) to calculate the appropriate severance to which Plaintiff was entitled by counting 1 month per year of work. This led Defendant to offer a severance equivalent to 4 weeks of salary (for 1 year of work) which happened to be higher than the statutory requirements[9], and Plaintiff to claim a severance of 12 months as 11 years of work had to be considered (taking into account her 10 years with ULS).
[34] The Court believes that when Plaintiff accepted Defendant’s employment offer, she did to a certain extent expect that she would likely evolve during a reasonable number of years with her new employer. However, even though she was solicited by a recruiter of Defendant (Mr. Mazé), the context and fashion of the approach certainly cannot be described as aggressive or unusual. The written communications between Mr. Mazé and Plaintiff which appear at Exhibit P-4 do not show that Defendant “went out of its way” to please Plaintiff nor that she was promised a long-term relationship.
[35] The Employment Agreement itself confirms that Plaintiff was not at a high level in the hierarchy of Defendant. It does not either contain any indicia enabling to expect a long-term relationship. For example, she was under a 6-month probationary period[10] and the notice she had to give to Defendant if she wished to terminate her employment was only 2 weeks if she had less than 5 years of seniority.[11]
[36] Hence, Plaintiff did leave a stable job to join Defendant but was not pressured to leave said job nor was she offered a salary that was significantly higher. The Court will therefore consider her past years of employment but only to a limited extent.
[37] Finally, the employment situation in the field of IT, the experience of Plaintiff and her age, lead the Court to conclude that she was in a good position to find a similar job.
[38] In view of all these circumstances, the Court is of the opinion that a severance of 4 months (17 weeks) of salary ($40,865.38) is reasonable and complies with Article 2091 Q.C.C.
[39] As Defendant had paid Plaintiff for the 2-week statutory notice, it still owes her 15 weeks of salary, which amounts to $36,057.69.