Thanks to François Lévesque, Articling Student, Norton Rose Fulbright Canada LLP, Québec City, for his contribution.
As a general rule, the Civil Code of Québec provides that:
Either party to a contract with an indeterminate term may terminate it by giving notice of termination to the other party.
The notice of termination shall be given in reasonable time, taking into account, in particular, the nature of the employment, the special circumstances in which it is carried on and the duration of the period of work.
Instead of giving a notice of termination, the employer may pay the employee in lieu thereof.
This rule does not apply for termination of employment for serious reason, which amounts to a good and sufficient cause.
That being said, termination of employment in Québec presents some real challenges.
Indeed, an employer must abide by several public order protections afforded to an employee, such as the one provided by section 124 of the Labour Standards Act (LSA), reading as follows:
An employee credited with two years of uninterrupted service in the same enterprise who believes that he has not been dismissed for a good and sufficient cause may present his complaint in writing to the Commission des normes du travail or mail it to the address of the Commission des normes du travail within 45 days of his dismissal, except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement.
If the complaint is filed with the Commission des relations du travail within this period, failure to have presented it to the Commission des normes du travail cannot be set up against the complainant.
The employee has the burden to demonstrate that i) he is an “employee” (there are several exclusions such as the senior manager), as contemplated by the LSA, that ii) he is credited with two years uninterrupted service in the same enterprise, that iii) he has been dismissed and that iv) he cannot benefit from another remedial procedure, other than a recourse in damages (e.g. grievance arbitration for unionized employees). Afterwards, the burden shifts to the employer to prove that the employee was dismissed for a good and sufficient cause.
The Commission des relations du travail, an administrative tribunal, is vested with the power to adjudicate section 124 LSA complaints.
Generally, at the hearing, the employee is represented by a government lawyer, free of charge.
The expression “good and sufficient cause” means that the dismissal should be based on a sufficiently serious reason to justify the termination of the employment relationship. This concept involves substantial grounds such as dishonesty, insubordination, negligence, incompetence and bad performance.
Generally, the Commission des relations du travail will look at whether the employee was disciplined prior to being dismissed for his misconduct. Unless exceptional circumstances where a misconduct per se breaches the employer’s trust towards the employee, the employee should be warned and suspended prior before his dismissal. Such an approach is called progressive discipline and is being adhered to by the Commission des relations du travail. .
Should the Commission des relations du travail determine that the employee was dismissed without good and sufficient cause, its broad remedial powers are the following:
- order the employer to reinstate the employee;
- 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;
- render any other decision the Commission believes fair and reasonable, taking into account all the circumstances of the matter.
Section 124 LSA is therefore a genuine labour standard.
Please note that other recourses are available for employees in case of discrimination or unfair labour practices.