What constitutes a serious motive to terminate an employee under a fixed-term employment contract? Recent events in Quebec raise this question as the province’s former deputy premier Nathalie Normandeau was dismissed by her employer, a Quebec City radio station, even though her contract expired in August 2019. This occurred after the deposition of seven criminal charges against the former politician by the Permanent Anticorruption Unit (“UPAC”), including corruption, fraud toward the government, conspiracy, breach of trust and use of forged documents. These accusations are part of the investigations conducted by UPAC in Quebec regarding political financing in exchange of public sector contracts.

Following her termination, the former cabinet member applied to the Superior Court seeking $722,500 for loss of salary as well as punitive and moral damages. The court recently rejected the former politician’s motion to obtain an order to protect her rights to a salary in view of the financial consequences of her criminal trial (click here to read the decision). The Court considered the usual criteria, i.e. emergency, appearance of right, presence of an irreparable prejudice and balance of convenience. Although the upcoming criminal trial was considered to be too remote to fulfill the criterion of emergency, the Court summarized the relevant sequence of events to decide of the appearance of right issue. The judgment on the merits is still to come but the Court did not find that the plaintiff’s right was apparent in light of the law.

This case raises the issue of what is sufficient to be considered a “serious reason” for dismissal according to the Civil Code of Quebec, which allows the employer to unilaterally terminate an employee without notice in such circumstances. It is generally accepted that the object of the employer’s motive must be an act attributable to the employee that is objectively “serious” and related to the obligations part of the employment contract. This analysis is highly contextual. The burden belongs to the employer to prove the presence of a serious reason.

Here, the employer’s counsel evokes the “serious motive” clause in the employment contract, which provided that a declaration or accusations affecting the employee or the company’s reputation could constitute a motive for termination. According to the defendant, the accusations of fraud and corruption deposed against Normandeau significantly affect the radio station’s credibility. The court is therefore likely to consider the terms agreed upon by the parties at the creation of the contract in its evaluation.

Moreover, the court will have to determine – on the merits – to which extent an accusation, rather than a conviction, can affect a company’s reputation given that Canadian citizens benefit from the presumption of innocence. In the case of an employment suspension related to criminal accusations, the Supreme Court of Canada has considered, amongst other criteria, the necessity of the suspension to protect the enterprise’s legitimate interests, the employer’s duty to act fairly and the nature of the infraction committed. A similar balancing of interests will allow the court to determine if the charges deposed against Normandeau constitute a serious motive for termination.

In sum, this situation raises interesting questions about the interaction between the public sphere and the private employment relationship. Situations where employees jeopardize their employer’s reputation by their actions are current in the area of labour and employment and extend to more than criminal accusations, as they can simply be an inappropriate behavior online for example. In an era controlled by social media, employers will have to be careful to respect their employees’ rights while ensuring that they are made aware of their obligations of loyalty to the enterprise.

Written with the assistance of Sandrine Raquepas, summer student.

Leave a Reply

Your email address will not be published. Required fields are marked *