Employers have duties towards employees working abroad

An electrician who launched a $190,000 suit against the scandal-plagued engineering firm SNC-Lavalin for failing to “rapidly and efficiently” evacuate him from Libya while the African nation was in the midst of a civil war lost his court battle after Quebec Superior Court held that the “troubles and inconvenience” he suffered were due to the “insurrection” in the country.

In a ruling that sheds light on the responsibilities employers have towards employees who work abroad, Justice Louis Lacoursière held that while article 51 of the Quebec Act Respecting Occupational Health and Safety (Act) does not apply beyond the borders of Quebec, employers are nevertheless bound under article 2087 of the Civil Code of Québec to take “any measures” to protect the health, safety, and dignity of employees even if they work out of the country.

“Although the Act does not apply outside of Quebec, that does not mean that employers do not have obligations towards employees who work outside of the country,” noted Orélie Landreville, an employment and labour lawyer with Dunton Rainville in Montreal. “Employers have a general duty, including the duty to act in good faith, to keep its employees informed, to respect the obligations spelled out in the contract, that are inherent in contracts because the contract was signed in Quebec. That it was executed elsewhere changes absolutely nothing.”

The ruling underscores yet again the importance that Quebec legislators have given to safety and security of workers, adds Sylvain Toupin, an employment and labour lawyer with Cain Lamarre Casgrain Wells in Montreal. That safety and security is clearly emphasized in two completely different pieces of legislation highlights its importance, added Toupin. “The bottom line is that these two articles have a vocation that for all intents and purposes is identical,” said Toupin. “Even its wording is extremely similar. I can tell you that in practice I use both articles interchangeably.”

Francis Proulx, an electrician who headed a team of 20 people on a water-irrigation project in in the middle of the Sahara desert in the town of Sarir, alleged that the Montreal engineering giant failed to protect the dignity of employees by keeping employees in the dark over its evacuation plans. Proulx also alleged that SNC-Lavalin failed to ensure the safety and security of its personnel while the nation became embroiled in civil strife beginning in 2011. Proulx, who was hired on a year-long fixed-term contract, also claimed that SNC-Lavalin rescinded its promise, without just cause, to extend his contract by five years. As well, Proulx alleged that since returning to Quebec he suffers from “enormous stress” and insomnia. In a counter suit, SNC-Lavalin sued Proulx also for $190,000, including $130,000 in damages for harming its reputation following critical comments Proulx made in the media about SNC Lavalin’s efforts to evacuate personnel.

“There is no doubt that Mr. Proulx was affected by the incertitude and anguish he experienced in Sarir,” said Justice Lacoursière in Proulx v. SNC-Lavalin inc. 2014 QCCS 4823. “However, the cause of these troubles and inconveniences was the insurrection in the host country rather than actions committed by SNC.” In fact, SNC-Lavalin established a crisis team to deal with the highly-charged situation in Libya, somewhat kept employees informed over evacuation plans, and evacuated personnel two weeks from the onset of the crisis, pointed out Justice Lacoursière.

Besides having to take measures to protect the health, safety, and dignity of employees, employers are bound by article 2087 of the Civil Code to keep employees informed of developments related to their work, said François Fleury, an employment and labour lawyer with Monette Barakett Avocats S.E.N.C. in Montreal. But it is contextual, adds Fleury. SNC-Lavalin decided to parcel out information over its evacuation plans because it feared that a leak could compromise the security of its employees. “The judge recognizes that SNC-Lavalin gave out evasive responses but it doesn’t amount to a civil fault because of the unique circumstances that it faced,” said Fleury.

Since SNC-Lavalin was not at fault for the manner in which it fulfilled its obligations and responsibilities before and during the evacuation from Sarir, the judge held that if Proulx wants to seek compensation for his psychological harm and loss of enjoyment of life he should be turning to the Quebec workers’ compensation board because it is an occupational injury under the Act Respecting Industrial Accidents and Occupational Diseases. That Act applies to employees who are Quebec residents and employers who have a place in business in Quebec, regardless of where the work was done, said Landreville.

Justice Lacoursière also dismissed Proulx’s allegation that he was hired under a permanent contract and was fired without just cause. Justice Lacoursière held that Proulx signed a fixed-term contract that could last up to 12 months or for the duration of the project requirements. The project came to an end following the political strife in Libya, circumstances that were beyond SNC-Lavalin’s control, said Justice Lacoursière. What’s more, upon termination of the contract the engineering firm gave Proulx a reasonable indemnity that included four weeks’ pay, plus time owed and vacation pay, which he cashed in. While Proulx had hoped to work for SNC-Lavalin, and repeatedly – albeit unsuccessfully — applied for new job postings, the Montreal firm was under no obligation to hire him, added Justice Lacoursière. “The issue of fixed-term contracts or permanent contracts is one that is regularly raised by employees and one we deal with often,” said Landreville. “The qualification of the contract is decisive in terms of the obligations each party has upon termination of employment.”

Justice Lacoursière also rejected SNC-Lavalin’s counter-suit. The engineering firm asserted that its reputation was harmed from comments Proulx made to the media over SNC-Lavalin’s evacuation efforts. “SNC-Lavalin found itself at the center of tough media coverage, and it is difficult to conclude from the evidence that Proulx’s affirmations…had an impact on its reputation,” said Justice Lacoursière.

That surprises Toupin. “It’s as if the ruling is saying that if you have a poor reputation, you are going to provide additional evidence to prove your case for damages. That finding is going to certainly have an impact.”

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