When faced with difficult employment situations, employers can sometimes act hastily, including opting to quickly end their employment relationships with “problem” employees.
It is important to note however that reacting rapidly can be costly, specifically in cases where the employee in question challenges his or her termination before a tribunal on the grounds that he or she was terminated without just cause.
An employee can be awarded a sum of money to compensate him or her for the manner in which he or she was terminated. Furthermore, unlike most courts in common law jurisdictions, Quebec tribunals have the power to re-instate an employee who has been terminated.
Quebec employers are encouraged to examine whether they have abided by the following labour and employment guidelines prior to terminating an employment relationship (many of these guidelines also apply in common law jurisdictions).
- Disciplinary sanctions must be progressive
- When applying a disciplinary sanction, one must remember that the ultimate purpose is to rehabilitate the employee.
- The process must be comprised of an official reprimand (preferably in writing) and at least one or more suspensions before considering a dismissal.
- The sanction should be proportional to the fault.
- An employee should always be granted an opportunity to respond to any allegations
- In a case of wrongful terminations, tribunals will consider the absence of such an opportunity
- Serious fault or gross misconduct does notnecessarily justify a dismissal
- It is important to consider each case on a factual/contextual basis when determining whether the fault is just cause for dismissal.
- The line between a resignation and dismissal can blur
- An employer should be cautious and its assumption should rest on extensive and precise evidence pointing towards an employee’s clear intention to resign.
- The resignation must be express and done with free and informed consent.
- The situation may be categorized as a constructive dismissal
- A substantial change to an employee’s essential employment conditions (tasks, salary, etc.) may be found to be a constructive dismissal.
- In the case of a resignation pursuant to such a change, an employer may rightfully object to an allegation of constructive dismissal by demonstrating that it provided the employee with reasonable notice with regard to the implementation of the change.
- Some situations require a duty to accommodate
- Various scenarios may create a duty to accommodate including: pregnancy, handicap (including substance dependencies), and gender.
- Steps must be taken prior to a termination for incompetence
- The employer should start by implementing a performance improvement plan (“P.I.P.”)
- Termination of the employment relationship may render the non-compete agreement inapplicable
- A non-compete clause will only be enforceable if the employee willingly resigned or was dismissed for a serious reason.
- Employees may have a recourse for termination without cause
- Employees with at least two (2) years of service are entitled to statutory recourses for termination without just cause.
- However, even employees with less than two (2) years of service may benefit from various recourses pursuant to legislation other than labour and employment statutes, such as Quebec’s Charter of human rights and freedoms.
- An employer’s emotional and impulsive actions may be costly
- Employers who dismiss an employee in an abusive, cavalier or humiliating manner may face reparation costs.
The above reasons reinforce that care should be taken when dismissing employees in Quebec. Not only the reason for the dismissal, but the timing and manner are important.