When faced with difficult employment situations, employers can
sometimes act hastily, including opting to quickly end their
employment relationships with "problem" employees.
It is important to note however that reacting rapidly can be
costly, specifically in cases where the employee in question
challenges his or her termination before a tribunal on the grounds
that he or she was terminated without just cause.
An employee can be awarded a sum of money to compensate him or
her for the manner in which he or she was terminated. Furthermore,
unlike most courts in common law jurisdictions, Quebec tribunals
have the power to re-instate an employee who has been
Quebec employers are encouraged to examine whether they have
abided by the following labour and employment guidelines prior to
terminating an employment relationship (many of these guidelines
also apply in common law jurisdictions).
1. Disciplinary sanctions must be
When applying a disciplinary sanction, one must remember that
the ultimate purpose is to rehabilitate the employee.
The process must be comprised of an official reprimand
(preferably in writing) and at least one or more suspensions before
considering a dismissal.
The sanction should be proportional to the fault.
2. An employee should always be granted an
opportunity to respond to any allegations
In a case of wrongful terminations, tribunals will consider the
absence of such an opportunity
3. Serious fault or gross misconduct does not
necessarily justify a dismissal
It is important to consider each case on a factual/contextual
basis when determining whether the fault is just cause for
4. The line between a resignation and dismissal can
An employer should be cautious and its assumption should rest
on extensive and precise evidence pointing towards an
employee's clear intention to resign.
The resignation must be express and done with free and informed
5. The situation may be categorized as a
A substantial change to an employee's essential employment
conditions (tasks, salary, etc.) may be found to be a constructive
In the case of a resignation pursuant to such a change, an
employer may rightfully object to an allegation of constructive
dismissal by demonstrating that it provided the employee with
reasonable notice with regard to the implementation of the
6. Some situations require a duty to
Various scenarios may create a duty to accommodate
including: pregnancy, handicap (including substance
dependencies), and gender.
7. Steps must be taken prior to a termination for
The employer should start by implementing a performance
improvement plan ("P.I.P.")
8. Termination of the employment relationship may
render the non-compete agreement inapplicable
A non-compete clause will only be enforceable if the employee
willingly resigned or was dismissed for a serious reason.
9. Employees may have a recourse for termination
Employees with at least two (2) years of service are entitled
to statutory recourses for termination without just cause.
However, even employees with less than two (2) years of service
may benefit from various recourses pursuant to legislation other
than labour and employment statutes, such as Quebec's
Charter of human rights and freedoms.
10. An employer's emotional and impulsive
actions may be costly
Employers who dismiss an employee in an abusive, cavalier or
humiliating manner may face reparation costs.
The above reasons reinforce that care should be taken when
dismissing employees in Quebec. Not only the reason for the
dismissal, but the timing and manner are important.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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