Section 124 of the Labour Standards Act provides recourse for employees having two (2) or more years of uninterrupted service who have been terminated without just and sufficient cause. Employers should therefore be cognisant that once it terminates the employment of an employee with at least two (2) years of service, it will need to justify the termination by a just and sufficient cause since the payment of severance pay may not be sufficient.
An important factor, and sometimes a surprising factor for persons not familiar with Québec employment law, is that an employee who files a complaint under section 124 can be represented, free of charge, by an attorney from the CNESST's legal department.
Prior to the hearing before the Administrative Labour Tribunal, the parties have an opportunity of participating in two mediation processes, one organised by the CNESST and the second with a conciliator at the Administrative Labour Tribunalin order to try settling the complaint.
This recourse is heard before an Administrative Labour Tribunal judge whose powers include the power to reinstate the employee.Such hearing before an Administrative Labour Tribunal judge generally takes place within nine (9) months after the filling of the complaint and the decision of the administrative judge, which must be rendered in writing, is final. There is a possibility for judicial or administrative review but it will only be granted if the administrative judge's decision was patently unreasonable.
Indeed an employee who has been terminated without just and sufficient cause can be reinstated and compensated for his loss of salary since the termination date (back pay). An administrative judge could not order reinstatement in cases where relations between the parties are particularly tenuous and is much less likely to order reinstatement in the cases where the terminated employee held a managerial position.
Section 124 complaints are the most common recourse undertaken by employees in the province of Québec. This recourse is similar to a grievance under a collective agreement, where arbitrators request the employer to apply progressive discipline before terminating an employee.
The other powers conferred unto the Administrative Labour Tribunal by section 128 of the Labour Standards Act is to order the employer to pay to the employee an indemnity up to a maximum equivalent to the wage he would normally have earned had he not been dismissed and render any other decision he believes fair and reasonable.
It is important to note that this recourse is not open to senior managerial personnel. As mentioned above, although there is no definition of "senior managerial personnel", the Labour Standards Act and its regulations are really intended to exclude only those persons who exercise substantial influence in the administration of the business and have a high degree of decision-making power.
The recourse is also not open to employees who have been laid off (e.g. job elimination), however an employee could file a complaint under section 124 allowed by arguing that his lay off was actually a pretext to terminate his employment without good and sufficient cause. The employer will need to demonstrate that the layoff was the result of economic or operational reasons. Furthermore, an employer should be able to demonstrate that the employee that was laid off was chosen by the employer for reasons that were neither arbitrary nor discriminatory and was based on objective criteria (i.e. seniority).
The recourse under the Labour Standards Act is certainly more expedient than recourse before Québec's civil courts, as parties usually have a hearing date within nine (9) months of the lodging of the complaint and a judgement is usually rendered within 1824 months following the dismissal. It cannot be denied that such a recourse permits awards which are often more generous for terminated employees.
Indeed, and as previously mentioned, the fact that an employer provided an employee with reasonable notice under section 2091 of the Civil Code, does not preclude an employee from obtaining back pay and/or an indemnity in lieu of reinstatement, in the event the dismissal is determined to have been made without just and sufficient cause. A concrete example is that while a 30 year old receptionist with four (4) years of service may be entitled to one (1) month of notice under section 2091 of the Civil Code, this same employee could be awarded 18 months of back pay pursuant to a successful complaint under section 124 of the Labour Standards Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
