The year 2024 saw several significant judicial decisions shaping
the landscape of labour and employment law. In the following pages,
we present the key highlights from a dozen rulings by the
Québec Court of Appeal and Superior Court, the Human Rights
Tribunal, the Administrative Labour Tribunal and a grievance
arbitrator. These decisions address critical topics such as
constructive dismissal, dismissal for poor performance, pregnant
worker reassignment, discriminatory refusal to hire a transgender
individual and prohibited practices under the Charter of the French
Language.
We also identify key issues and cases to monitor in 2025,
providing insights into developments that may impact employers and
employees alike.
For additional information or to discuss any of the cases in
detail, please reach out to a member of our Employment and Labour law group.
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Constructive dismissal and the distinction
between fixed-term and open-ended contracts |
Facts |
- The employee began working for the employer in 1999, initially
in an assistant position. Over time, she advanced within the
organization and was promoted to General Manager in January
2018.
- In March 2018, the parties signed a first written employment
contract, which allowed either party to unilaterally terminate the
agreement, provided a specific notice period was given. The
contract also stipulated that if the employee was dismissed as
General Manager, she could return to her prior role as assistant
under the conditions applicable to that position.
- In May 2018, an addendum to the employment contract was signed.
It included the following provision : "This is to confirm that
a lump sum of CA$10,000.00 will be paid to the employee for the
first payable in December of each year for a five-year contract
from this day, i.e. for the years 2018 to 2022 inclusive. In the
event of voluntary departure or dismissal, the amount for the
current year will be paid and the amounts for subsequent years will
be cancelled." [translated by authors].
- In November 2018, the employer terminated the contract and
invited the employee to return to her previous role.
- In November 2019, the employee filed a claim for constructive
dismissal, arguing that the parties were bound by a five-year
fixed-term contract and that the employer owed her salary for the
remaining years of the agreement.
- The Superior Court concluded that the parties were, by a fixed
term agreement, referencing the "five-year contract"
expression used in the 2018 addendum. Ruling that the employee had
been constructively dismissed, the Tribunal ordered the employer to
compensate her for the unpaid balance of the five-year period,
ruling that she had been constructively dismissed.
|
Decision |
- The Court of Appeal upheld the trial judge's determination
that the employee was constructively dismissed. It found that the
employer had unilaterally and significantly altered her employment
terms without valid cause or appropriate notice when it demoted
her.
- However, the Court of Appeal identified a manifest error in the
trial judge's reasoning regarding the contract's
classification. Specifically, the Court noted that the March 2018
agreement contained unilateral and discretionary termination rights
for both parties, a hallmark of undefined term contracts.
- The Court determined there was nothing in the evidence
supporting that the parties were intending to transform the initial
indefinite-term contract into a fixed-term one when signing the
2018 addendum. Importantly, the addendum did not alter the
unilateral termination provisions of the original contract.
- Constructive dismissal in the context of an undefined-term
employment contract entitles the affected employee to compensation
in lieu of reasonable notice. In this case, the Court of Appeal set
the notice period at 20 months.
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Final provisions of the Act to Modernize the
Occupational Health and Safety System come into force
We would like to remind you that several amendments under the
Act to Modernize the Occupational Health and Safety System, adopted
in October 2021, have not yet taken effect. These amendments will
come into force on the date or dates specified by the government,
which must be no later than October 6, 2025.
As a result, the current interim arrangements for prevention and
participation mechanisms will expire by October 5, 2025. Employers
will be required to develop and implement a prevention program that
includes psychosocial risks.
|
Dismissal for poor performance
|
Facts |
- The employee began working for the appellant employer in 2001
and maintained a clean disciplinary record until her
dismissal.
- During the 2015-2016 school year, she chose to teach a
multi-grade intercycle class encompassing three grade levels, which
proved to be highly challenging. Concerns raised about her
performance included disorganization, noncompliance with
established guidelines, and the use of sarcasm towards students.
Despite the principal's recommendations, she elected to teach
the same group the following year, continuing to encounter
difficulties. Additional criticisms arose, including non-compliance
with ministerial guidelines, lack of professionalism, bullying of
certain students and personal use of social media during
class.
- On February 22, 2017, she was suspended with pay pending an
investigation into these issues and was subsequently dismissed for
"insubordination and/or misconduct and/or neglect of duty
and/or incapacity."
- The union filed a grievance contesting the dismissal.
- The arbitrator categorized the dismissal as administrative and
upheld the termination, concluding that the employer had satisfied
the criteria established in Costco Wholesale Canada Ltd. v Laplante
(Costco).
- The Superior Court dismissed the union's application for
judicial review, finding no reviewable error in the
arbitrator's categorization of the dismissal as administrative
or in the contextual application of the Costco criteria.
|
Decision |
- The Court of Appeal rejected the union's argument that the
arbitrator unreasonably characterized the dismissal as
administrative rather than mixed (both administrative and
disciplinary).
- While some of the employee's shortcomings might initially
have been viewed as disciplinary in nature, her responses during
the investigation led the employer to determine that she appeared
unable to recognize her deficiencies and challenges, which pointed
more to a performance issue. As a result, even with continued
support, it was unlikely that her practices would have
significantly improved. Given this context and the grounds for
dismissal cited, the arbitrator could reasonably conclude that the
case involved administrative incapacity rather than intentional
misconduct.
- The Court also dismissed the union's assertion that the
dismissal was unreasonable on the basis that the employer had not
explicitly warned the employee that her job was at risk if her
performance did not improve. The arbitrator's reliance on the
Costco criteria as a framework to be applied globally and
contextually, rather than as strict conditions, aligns with a
minority trend in case law and was not unreasonable.
|
|
Staggering of hours of work and computing
hours of work and overtime pay |
Facts |
- The employer provides manpower to a paper mill operating 24/7.
Employees worked a schedule staggered over two weeks (36hours one
week, 48hours the other), each shift being 12 hours, including a
60-minute paid meal break.
- All working hours were compensated at regular rate.
- An anonymous monetary complaint was filed with the Commission
des normes, de l'équité, de la santé et de
la sécurité au travail (CNESST), alleging that the
employer was not paying overtime in accordance with the Act
respecting labour standards.
- At the trial-court level, the Superior Court ruled in favour of
the employees, concluding that:
- The employer could not rely on staggered working hours without
prior authorization from the CNESST.
- Paid meal breaks had to be included in the calculation of hours
worked for overtime purposes.
- The workweek, for overtime calculations, began on Monday.
|
Decision |
- Staggered hours: The Court of Appeal upheld the finding that
the employer could not benefit from staggered hours, as it had not
secured prior authorization from the CNESST. Furthermore,
individual agreements under the third paragraph of section 53
cannot be applied retroactively, which was the case here.
- Paid meal breaks: The Court of Appeal overturned the trial
judge's decision regarding the inclusion of paid meal breaks in
the calculation of hours worked for overtime. It noted that
employees were not required to work during their breaks, except in
the event of an emergency. Although employees were encouraged to
remain on-site due to the short duration of the breaks and the
plant's layout, they were not obligated to eat at their
workstations and generally took their meals in the cafeteria.
- Workweek: The Court also overturned the trial judge's
conclusion about the obligation to have the workweek starting on
Monday. Even though punch cards reflected a Monday-to-Sunday
workweek, the employer could adopt a different seven-day period
(e.g., Saturday to Sunday) for calculating overtime hours.
|
|
Reassignment of a pregnant worker
|
Facts |
- On December 20, 2020, the worker, a patrol sergeant for the
Service de police de la Ville de Québec, submitted a medical
certificate confirming her pregnancy and indicating the risks
associated with her job for both her and her unborn child. On the
same day, the employer removed her from work without offering her
an alternative reassignment.
- On January 8, 2021, the worker formally requested reassignment
to safe tasks.
- On February 10, 2021, after analysis, the employer refused the
reassignment. On the same day, the worker filed a complaint with
the CNESST under section 227 of the Act respecting occupational
health and safety (AOHS), alleging reprisals and discrimination due
to her pregnancy.
- On April 29, 2022, the CNESST dismissed the complaint, ruling
that no sanctions or measures had been imposed on the worker.
- On December 16, 2022, the Administrative Labour Tribunal (ALT)
upheld the CNESST's decision, asserting that reassignment was
not a right guaranteed under sections 40 and 41 of the AOHS.
- On January 12, 2023, the worker filed for judicial review of
the ALT's decision, arguing that the Tribunal had erred in
adopting an overly restrictive interpretation of sections 40 and 41
of the OHSA and had failed to consider the Supreme Court of
Canada's interpretation in Dionne v Commission scolaire des
Patriotes.
- The worker maintained that the employer had a duty to assess
whether a safe and available position existed, and if such a
position was found, to reassign her during her pregnancy.
- The employer, in contrast, argued that there was no legal
obligation to reassign the worker to another position.
|
Decision |
- The Superior Court found the ALT's decision unreasonable
for the following reasons:
- The ALT had adopted an overly restrictive interpretation of the
right to reassignment, neglecting the employer's obligation to
respond to reassignment requests. It also failed to consider
important aspects of the Dionne decision, which established that
after a reassignment request, the employer must assess whether
reassignment is possible.
- The ALT did not properly analyze the reasons behind the
employer's refusal to reassign the worker, which prevented a
determination of whether this refusal could be considered
discriminatory. This omission impacted the reasonableness of the
ALT's decision.
- The Court also felt the ALT failed to address the worker's
main arguments regarding the employer's duty and that the
worker's complaint under section 227 should be assessed in
light of her rights under sections 40 and 41 of the AOHS.
- The Court granted the appeal for judicial review and returned
the case to the ALT for a new analysis in accordance with the
AOHS.
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To watch for in 2025
The City of Québec has appealed this decision and the
Court of Appeal's ruling will provide clarification regarding
the employer's obligations.
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