Dismissal Lawyers

---

Dismissal: The End of the Employment Agreement

---

Dismissal marks the end of the employment relationship between an employee and an employer. In the realm of labor and employment law, dismissals often form the core of court cases or grievance arbitrations due to the significant financial implications for both employers and employees, whether unionized or not. For a company, the decision to dismiss an employee – whether du to underperformance, a negative attitude, prolonged inability to work due to illness, or instances of dishonesty like fraud or theft – carries substantial weight. It is a step that can be both costly and impactful on the company’s environment and reputation. Similarly, for the employee, dismissal has serious consequences. It affects not only their career trajectory but also their financial stability, often leading them to seek unemployment benefits and new employment opportunities. This is why courts and grievance arbitrators meticulously examine the fairness and legality of the dismissal process. They ensure compliance with various legal requirements, including those set out in the Act Respecting Labour Standards, the Civil Code of Québec, the Charter of Human Rights and Freedoms, and in the case of unionized employees, the Collective Agreement. Given these complexities, dismissal should always be a well thought out decision, informed by legal counsel and in alignment with the law. It is not a decision to be made impulsively or without thorough consideration of the legal consequences.

In Quebec, the rules surrounding dismissal are outlined in articles 2085 and subsequent sections of the Civil Code of Quebec. These provisions apply broadly. For instance, article 2091 of the Civil Code of Quebec specifies that both the employer and the employee have the right to terminate an indeterminate employment contract by providing reasonable notice to the other party. When an employee chooses to end the employment contract, it is termed a resignation. On the other hand, if the employer ends the contract due to reasons specific to the employee and not for economic motives, this is known as dismissal. In cases where the contract ends for economic reasons, the terms termination or layoff are more aptly used. stipulates that either the employer or the employee may terminate the indeterminate employment contract by giving the other reasonable notice. We refer to resignation when the employee ends the employment contract. The employer dismisses an employee when ending the employment contract for reasons concerning the employee individually and not for economic reasons, where we would rather refer to termination or layoff.

In labor and employment law, in Quebec and Canada in federally regulated companies, there are two types of dismissal: disciplinary dismissal and administrative dismissal.

---

Disciplinary Dismissal

---

It is recognized that employers have the authority to dismiss employees for disciplinary reasons, insofar as these actions are carried out within the confines of the law, respectfully, and adhering to labor law principles. A disciplinary dismissal typically arises when there is a breach of the employee’s duty of loyalty and trust towards their employer. This can manifest in various forms, such as theft of materials or equipment, fraudulent use of the company’s credit card, or falsifying work hours. The reasons for dismissal related to discipline are extensive, and it is crucial to consider the principle of progressive discipline. The employer must assess the severity of the employee’s misconduct. Minor misconduct like chronic lateness may not warrant immediate dismissal without providing the employee reasonable notice to secure alternative employment, or without just and sufficient cause as outlined in the Act Respecting Labour Standards (CNESST), the Canada Labour Code, or the Collective Agreement for unionized employees. The validity of dismissal reasons can be subject to debate in court or before grievance arbitrators, with each case being unique. An employer’s justification for dismissal strengthens when they have consistently warned the employee against repeated misconduct, such as chronic lateness, and have escalated sanctions appropriately with verbal and written notices, and in severe cases, suspensions with or without pay while investigation serious misconduct like psychological or sexual harassment, or criminal charges. Several instances of misconduct have been recognized by courts as justifiable grounds for dismissal:

• Excessive and cumulative absenteeism or chronic lateness
• Use of illicit substances like alcohol or drugs at work
• Sleeping on the job
• Psychological harassment of colleagues
• Sexual harassment or other inappropriate sexual conduct
• Willful and repeated insubordination
• Theft or fraud
• Loss of and breach of trust
• Breach of duty of loyalty, such as disparaging the company on social media or promoting competitors’ products to clients
• Conflicts of interest

For those interested, we recommend reading the annotated Act Respecting Labour Standards (Loi sur les normes du travail: Législation, Jurisprudence et Doctrine, Alter Ego Collection, Me Charles Caza), the link to the most recent version in French can be found here: https://elois.caij.qc.ca/N-1.1/article124

---

Administrative Dismissal

---

An employer may also need to dismiss an employee for administrative reasons. This could be due to the employee’s consistent lack of competence, even after receiving multiple warnings, performance evaluations, and chances to improve and meet expectations within the company. Additionally, situations where an employee is unable to return to work or perform their duties adequately due to prolonged illness fall under this category. In such cases, the employer might request a medical certificate to verify the employee’s absence. The law and existing caselaw also permit the employer to require the employee to undergo a medical examination – physical, psychological, or psychiatric – to assess their fitness for work.While it can be a difficult decision, there are times when an employer must dismiss an employee whose health condition prevents them from fulfilling their job responsibilities, even after the employer has made reasonable accommodations. The courts have recognized that while employers have a duty to accommodate, this obligation has limits and should not lead to under hardship for the employer. Given the evolving nature of caselaw, both employer sand employees should seek advice from a lawyer familiar with dismissal cases to determine if dismissal due to prolonged illness is legally justifiable.

Here are some instances where administrative dismissal may be warranted:

• Consistent incompetence
• Negligence
• Continually poor performance without improvement
• Psychological or physical incapacity where accommodation is not feasible
• Extended illness

---

Recourse

---

It is fundamental to understand that an employer can proceed with a dismissal at any time if there is just and sufficient cause to do so. If they wish to proceed with a dismissal without just cause, they can do so by giving reasonable notice as per Article 2091 of the Civil Code of Quebec. During this period, the employer may choose to have the employee work or as is most often the case, decide to provide a compensation in the form of salary.

To enhance employee protection and balance the power dynamic between employees and employers, the law sets specific conditions for dismissal based on the length of continuous service. For employees regulated by provincial legislation, they cannot be dismissed without just and sufficient cause after having rendered two (2) years of continuous service, under Article 124 of the Act Respecting Labour Standards. In contrast, for federally regulated employees, such as those working for banks, telecommunications companies, radio, maritime, and railway companies, an employer cannot dismiss them without just and sufficient cause after one (1) year of continuous service according to Section 240 of the Canada Labour Code. For these employees, termination of employment by the employer can only occur through dismissal for cause, whether disciplinary or administrative, or by layoff in situations of financial hardship or necessary position reductions. Provincially regulated employees seeking to contest their dismissal must file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST)within the set deadlines, and their case will be adjudicated by the Tribunal administratif du Travail. Federally regulated employees must file their complaint with the Federal Minister of Labour, and their case will be heard by an arbitrator appointed by the ministry.

For employees governed by a collective agreement, it will be necessary to refer to it and to the law in general to know the circumstances in which the employer can proceed with disciplinary or administrative dismissal. The employee must file a grievance and, if it is retained by the union and referred to arbitration, will be heard by a grievance arbitrator.

Federal and provincial public servants are a special case, and it is necessary to refer to the law, regulations, and decrees applicable to each concerned ministry to know the process of contesting the dismissal.

Whatever your situation, it is important to consult a lawyer well-versed in labor and employment law to obtain help and legal advice as well as support throughout all procedures.