Unfair dismissal or dismissal not made for good and sufficient cause

Transcription

1 Unfair dismissal or dismissal not made for good and sufficient cause (Recourse provided by section 124 of the Act respecting Labour Standards) Have you been dismissed or is your boss pressuring you to resign? You may be the victim of an unfair dismissal, also called a dismissal not made for good and sufficient cause. In certain circumstances, the Act Respecting Labour Standards (in French, Loi sur les normes du travail) may allow you to contest your dismissal. 1. What is a dismissal? A dismissal occurs when an employer puts a definite end to an employment contract or to the employment relationship with an employee for disciplinary reasons (repeated lateness, insubordination, fraud, theft, etc.), incompetence, or inadequate performance. A dismissal can be masked as a forced resignation, a temporary or permanent lay-off, or a suspension if the employer uses these situations as pretext to put an end to the employment relationship. These masked dismissals are called constructive dismissal. The non-renewal of a contract can also be considered a dismissal if the temporary contract has been renewed at least once. 2. Under which circumstances can an employer put an end to the employment relationship? Not all dismissals are illegal, despite how painful they may be. In certain situations, your employer can legally put an end to your employment, so long as he respects certain principles. If these principles have not been respected, you may file a complaint to contest your unfair dismissal, provided the necessary conditions have been met (see section 4). Here are situations in which an employer can legally put an end to an employment relationship. First, an employer can decide to permanently lay-off an employee (that is to say, put a definite end to the employment relationship for motives exterior to the employee) for the following reasons: economic for example, when a company faces financial difficulties or a substantial drop in revenues; organizational for example, when the reorganization of the company leads to the abolition or fusion of a position; technical for example, when technological innovations lead to the reduction of personnel. Principles to be respected The employer s decision to lay-off a particular employee rather than another (regardless of whether the lay-off is temporary or permanent) should be based on objective criteria. Seniority can be considered but the employer can also base his decision on other criteria such as productivity or general competence. A lay-off should not be used as a pretext to dismiss an employee without sufficient cause or to implement discriminatory measures or sanctions guided by illegal motives. 1

2 Second, in certain circumstances an employer can dismiss an employee for disciplinary reasons. A disciplinary dismissal can be justified by a serious fault or by the accumulation of minor errors. The following examples could justify a dismissal: repeated lateness or absences; errors in the execution of work; negligence; physical or mental incapacity; insubordination; an act of violence committed against a colleague, a superior or a client. Principles to be respected A dismissal is considered to be the capital punishment of the Labour Standards world and should only be the end result of a process call a gradation of sanctions. The employer should begin by warning the employee and then proceed with sanctions of increasing severity, all the while giving the employee reasonable time to learn and make adjustment between warnings and sanctions. There is, however, an exception to this rule: if an employee has committed a serious fault (for example, theft or an act of violence), the employer can dismiss the employee then and there without notice. Third, an employer can proceed with an administrative dismissal if the employee does not correspond (or no longer corresponds) to the position s requirements. Contrary to the disciplinary dismissal, which aims at punishing, the administrative dismissal is a consequence of the involuntary shortcoming of the employee. For example, the employee may be lacking the necessary competence to accomplish the task at hand. Principles to to be be respected As is the case with disciplinary dismissals, the employer must respect certain steps when dismissing an employee for incompetence. The employer must first inform the employee of the company s expectations and policies. If the employer notices an employee s shortcomings, he must explain to the employee what he s doing wrong and provide the necessary support to rectify the situation. The employer must also inform the employee that he could be dismissed if he does not improve within a reasonable period of time. A physical or mental limitation that prevents an employee from accomplishing his work for an extended or indefinite period of time could also be the cause of an administrative dismissal. Principles Did you know? to be respected An employer cannot put an end to an employment relation simply because the employee was sick for a few days, a few weeks or even a few months. Multiple laws protect workers who must take leave from work due to sickness or an accident. Moreover, the employer has the obligation to find a reasonable accommodation in order to keep and employee at work despite his handicap. 2

3 3. When is a dismissal considered unfair (or not made for good and sufficient cause)? As we have seen, all dismissals are not illegal. Here are a few examples of what could be considered an unfair dismissal. You can contest a dismissal if your employer puts an end to your employment without a valid or good and sufficient cause. You can do likewise if your employer did not respect the procedures and principles earlier described (see section 2), even if you admit having committed certain errors. If your employer has pressured you into handing in your resignation or has used a pretext to put an end to your employment relation, this could be considered a constructive dismissal. You can contest such actions if, for example: you have been laid-off and your employer hires someone to fill your position once you leave; your employer is in fact facing financial difficulties but has laid you off, all while keeping other employees at work, without basing his decision on pertinent and objective criteria. Also, provided the situation allows it, your employer should try to avoid a lay-off by offering you a reduction of hours or salary in order to keep you working; your employer pressures you into handing in your resignation by harassing you, or by bringing substantial changes to your employment conditions (for example, by giving you a demotion, by reducing your responsibilities or by significantly cutting your hours, your salary, or the length of your contract); you have a temporary contract that has always been renewed but is all of a sudden no longer renewed. The automatic renewals in the past have transformed your temporary contract into one of indeterminate duration. If your contract is unexpectedly no longer renewed, it could be considered a lay-off (giving you the right to a reasonable notice) or a masked dismissal. 4. How do I contest an unfair dismissal? Where do I file a complaint? If you have been unfairly dismissed, you can file a complaint with the Commission des normes du travail (CNT), provided you satisfy certain conditions (see below). The CNT is the governmental agency responsible for the application of the Act Respecting Labour Standards. The CNT informs both employees and employers as to their rights and obligations and it accepts complaints filed by employees. What are the conditions for filing a complaint with the CNT? To contest an unfair dismissal, you must: be a salaried employee (i.e. not a self-employed worker); have accumulated at least 2 years of uninterrupted service; 3

4 not have an equivalent recourse (for example, one provided by a collective agreement); file a complaint within a maximum period of 45 days, starting from the moment when you became aware of your dismissal. How do I file a complaint? You can file a complaint at the Commission des normes du travail by phone ( ), online ( or by mailing in a written complaint, using a form designed for this purpose. The CNT and Au bas de l échelle can provide you with this form upon request. If I do not satisfy the conditions for filing a complaint with the CNT, does this mean that I cannot contest the actions my employer has taken against me? Not necessarily. Labour law is divided into many different laws, many of which offer protection against such dismissals. Therefore, there may be other legal actions available to you. For example, you could file a complaint against a prohibited practice with the CNT if you have been subjected to reprisals or other sanctions for having exercised a right recognized by the LNT (such as taking a sick leave, demanding that your employer put an end to the psychological harassment you are subjected to, claiming over time pay, etc.). Contact Au bas de l'échelle without delay to find out more. It is important to act quickly because the periods within which you must file a complaint are often very short! 5. What are the steps by which a complaint is treated? The Commission des normes du travail (CNT) begins with a preliminary analysis as to the acceptability of the complaint; that is to say, they make sure you satisfy the conditions for filing a complaint (see section 2). If your complaint is acceptable, the CNT will then offer a session of mediation between you and your employer in an attempt to reach a satisfactory settlement for both parties. This step is done on a purely voluntary basis but we strongly recommend you try it. If no settlement is reached during You want to know more about prohibited practices? Ask for our information guide! You want to know more about mediation? Ask for our information guide! mediation, your file is transferred to the Labour Relations Board, hereafter designated as the Commission des relations du travail (CRT). At this point, your file is handed over to a lawyer from the CNT, who will represent you free of charge. Before the hearing takes place, the CRT offers a second chance to reach a settlement (known as conciliation ), during which your lawyer will be present. If this effort fails as well, the hearing takes place and the commissioner will decide whether or not there was in fact a prohibited practice. It is important to note that if the CNT decides that your complaint is inadmissable, you can either (A) ask for a revision or (B) ask that your file be transferred directly to the CRT. If you chose option B, know that you will not be entitled to free representation by a lawyer from the CNT, which could be the case if the CNT changes its decision as to the admissability of your claim (option A). 4

5 6. What can be obtained by filing a complaint against an unfair dismissal? The Act Respecting Labour Standards enumerates the reparations that a commissioner can grant to the victim of an unfair dismissal. A commissioner can order the employer to reinstate the employee to his previous position (with the same benefits and conditions) and have the employer pay an indemnity equivalent to the salary lost since the dismissal. A commissioner can also render any other decision which appears to be fair and reasonable given the circumstances at hand; for example, the payment of moral or exemplary damages, the payment of an indemnity for the loss of insurance coverage, the payment of job search costs or legal fees, a letter of recommendation, etc. You could use these possible reparations as a guide to formulate the requests you will present to your employer during mediation or pre-trial conciliation. 7. Some practical advice... File your complaint as soon as possible. This will ensure that you have exercised your right within the 45-day delay. In addition, it is usually easier to file the complaint when the events are still fresh in your memory. Write up an account of the events that lead to your dismissal, detailing the time and place of the events and listing the possible witnesses. 5

6 Even if you have been dismissed or have been forced to hand in your resignation, you may nevertheless be eligible for unemployment insurance. Contact a specialized support group to get advice tailored to your situation before filing a request for unemployment insurance. Find out if your employer owes you money: unpaid overtime, indemnity for notice, vacation pay (usually referred to as your 4% or 6% ), etc. If your employer does owe you money, you have one year to file a pecuniary complaint with the CNT. You want to know more about pecuniary complaints? Ask for our information guide! Are you hesitating to file a complaint because you are still employed (for instance, in the case of a masked dismissal) and are fearful of your employer s reaction? Know that you could file another recourse (i.e., a recourse for a prohibited practice) if your employer takes disciplinary measures against you for having exercised one of your rights recognized by the Act Respecting Labour Standards (i.e., the right to exercise a recourse against an unfair dismissal). If your employer wants you to sign a document when you are dismissed, ask for some time to think about it, regardless of the document. In addition, ask for a copy of the document to be signed and consult a lawyer. Be especially skeptical if your employer insists that you sign the document immediately or if he refuses to give you a copy. Your employer is obliged to give you a certificate of employment, provided you ask for it. This certificate should detail the nature of your job and the period during which you occupied the position, as well as the company s coordinates. If the employer refuses to give you this certificate, contact the CNT and file an administrative complaint. It is important to note that your employer is not obliged to give you a letter of recommendation describing his appreciation of your conduct or the quality of your work. If you have been laid-off, try to stay in contact with some colleagues from work in order to know if your employer has hired someone to replace you, in which case your lay-off may be a masked dismissal (also called constructive dismissal ). Know that you have the obligation to minimize your losses after your dismissal by actively looking for a new job (and keeping the proof thereof); otherwise, the commissioner will substantially reduce the indemnity you receive. Check to see if you can file another complaint with the CNT, the Commission des droits de la personne et de la jeunesse (CDPDJ) or the Commission de la santé et de la sécurité du travail (CSST). The more complaints you file, the more leverage you can have during negotiations. Call Au bas de l'échelle for more information! Au bas de l échelle is a defense group for non-unionized workers. We offer an information service pertaining to your rights in the workplace and we fight to improve working conditions for those who find themselves at the bottom of the ladder! If you share our aspirations and wish to give us support, you can make a charitable donation or become a member of our organisation. Contact us at or visit our website ( to find out more. Last updated: March 18,