Section 124 ALS institutes the recourse against a dismissal not made for good and sufficient cause. This recourse is an employment protection measure that is similar to a grievance, from which employees governed by a collective agreement generally benefit. Moreover, it reinforces the rules pertaining to the contract of employment stipulated in the Civil Code, by providing, where appropriate, the possibility for the employee’s reinstatement in his job.
Like the other standards stipulated in the Act, section 124 ALS is also a labour standard which creates in favour of the employee who is credited with 2 years of uninterrupted service a right to employment and protects him against a dismissal made without reason or justification. The notion of good and sufficient cause is understood as being that which is sufficiently serious to justify the dismissal. Hence, the employer cannot impose a sanction that is disproportionate to the fault that the employee is blamed for. All of the circumstances of each case must be evaluated to determine the good and sufficient nature of the measure taken by the employer.
Conditions for the recourse
It is up to the complainant to show, before the Commission des relations du travail, the conditions for the recourse instituted under section 124 ALS. The employer may object to the admissibility of the complaint that does not meet the conditions stipulated in the Act. Moreover, if these conditions are admitted by the employer, the complainant will generally not have to prove them.
The conditions for the recourse against a dismissal not made for good and sufficient cause are listed in section 124 ALS.
Notion of employeeThe complainant must be an employee within the meaning of the Act respecting labour standards. However, while he may qualify as an employee, this recourse is not open to him if he has the status of a senior managerial employee (see the interpretation of paragraph 6) of section 3 ALS and that of section 3.1 ALS on this subject as well as the interpretation relating to the definition of employee in paragraph 10) of section 1 ALS).
In addition, the employee must be the holder of a contract of employment with an undertaking under provincial jurisdiction. Indeed, the Act does not apply to undertakings under federal jurisdiction, such as banks or broadcasting stations, which fall under the responsibility of federal parliament. The contract of employment involves the following elements: the performance of work by an employee, remuneration, as well as an employee/employer subordination relationship.
Uninterrupted serviceSince May 1, 2003, to benefit from the recourse against a dismissal not made for good and sufficient cause, the employee must be credited with two years of uninterrupted service. Uninterrupted service is associated with the undertaking and not with the person who administers it. Uninterrupted service is calculated by considering the period of employment in the undertaking and not with the same employer. The Commission must make sure that the complainant meets this prerequisite, even at the complaint reception level, failing which the Commission cannot proceed to the other stages of the process. See the interpretation of paragraph 12) of section 1 ALS concerning the definition of uninterrupted service as well as that of sections 96 and 97 ALS related to the notion of undertaking and the impact of an alienation or concession of undertaking on uninterrupted service.
Termination of employmentThe employee must also prove that there was a termination of employment. It is up to the employer to prove that there was good and sufficient cause for the dismissal (see the section "burden of proof"). The analysis of the circumstances of an end of employment must be given a broad interpretation, to cover all forms of termination of employment. Consequently, every act by the employer putting an end to the employee’s employment relationship, regardless of how it is initially designated, may be assimilated with a dismissal. This termination of employment may ensue from disciplinary reasons, based on subjective considerations attached to the employee himself, or be the result of administrative considerations, based on facts related to the undertaking. In this case, it is a permanent layoff. For example, a severing of the employment relationship caused by the employee’s negative attitude at work is disciplinary in nature, whereas that related to the economic difficulties of the enterprise is administrative in nature.
Among other often-alleged reasons for disciplinary measures, one could accept repeated absences and lateness, negligence in the performance of work or insubordination. At the economic or administrative level, technological changes or a decline in business would be illustrations of reasons. Each of the reasons will have to be analyzed based on the circumstances of each case to determine if it constitutes good and sufficient cause for dismissal.
Moreover, when the employer modifies unilaterally and substantially the conditions of employment of an employee, prompting his departure without dismissing him directly, this may be a constructive dismissal. In such a case, it is not required that the employer act in bad faith or intentionally. All that is required is that the objective situation result in the severing of the contract of employment. The manifestations of a constructive dismissal can be characterized by changes such as a reduction in the number of hours of work, a reduction in wages, or a demotion to another position. Not recalling the employee to work after a layoff may be assimilated with a constructive dismissal.
It should also be mentioned that it is not necessary for the employee to have left his job to conclude that there was a dismissal. For example, the employee’s acceptance of a forced transfer or demotion does not deprive him of his recourse against a dismissal not made for good and sufficient cause under section 124 ALS.
Thus, section 124 ALS grants the employee who believes that his termination of employment is equivalent to a dismissal not made for good and sufficient cause the right to file a complaint with the Commission des normes du travail.
Absence of another remedial procedureA complaint under section 124 ALS cannot be filed "where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement". The existence of another remedial procedure is sufficient to prevent recourse to section 124 ALS, even if the employee decides to not exercise said remedial procedure. However, this other procedure must be clearly established and available to the employee at the time he decides to avail himself of the recourse under section 124 ALS. Moreover, it must be able to give rise to the same results as those stipulated within the context of this recourse, including the power to rule on the existence or absence of a dismissal not made for good and sufficient cause, and order the reinstatement of the employee in his job (see the interpretation of section 128 ALS concerning the powers of the Commission des relations du travail in this regard).
Furthermore, the remedial procedure must be obligatory in nature, in that one of the parties must oblige the other to submit to the procedure; it must respect the principles of natural justice, in particular the right to be heard by an independent and impartial court, and the decision made within the context of the procedure must be enforceable.
Regarding the form that this "other remedial procedure" must take, the courts have established seven main criteria to consider this procedure equivalent to the recourse stipulated in section 124 ALS, namely:
For example, a grievance procedure under a collective agreement, when it is at least equivalent to that stipulated in section 124 ALS, was assimilated with another remedial procedure preventing the exercise of the recourse under section 124 ALS. Moreover, a recourse against a prohibited practice (see sections 122 ALS and following) is not a remedial procedure within the meaning of section 124 ALS. In this case, the two recourses are different in nature, aim for a different goal and give rise to decisions that are in no way similar.
- the procedure must be recorded in writing;
- it must be known to the parties;
- it must contain the names and the titles of the parties;
- it must contain the designation of the arbitrators or the procedure for appointing them;
- it must contain the subject matter of the disputes subject to this procedure;
- it must specify the time period imposed on the arbitrator to make his decision;
- it must specify the jurisdiction and powers of the arbitrator.
Complaint filed within 45 days of the dismissalThe deadline for filing a complaint is 45 days. This is a strict deadline. However, in the case of a complaint filed late, the circumstances surrounding the late filing will have to be evaluated. Indeed, the complainant may not have been able to act earlier. This reason is a cause for interrupting prescription within the meaning of Articles 2904 and following of the Civil Code of Québec.
Moreover, a complaint mailed to the address of the Commission des normes du travail within the 45-day deadline is validly filed even if the Commission received it after the 45-day deadline. The date of the starting point of the 45-day period to file a complaint is the date on which the termination of employment became effective, and not that on which the employee is notified of this fact. However, in the case of a constructive dismissal, the period will begin either when the employee becomes aware of the changes and the effects on his contract of employment, or when he leaves his job definitively (see the interpretation of section 123 ALS related to the computation of time periods).
Burden of proof
When the employee establishes the aforementioned conditions opening the way for the recourse, it is up to the employer to prove a good and sufficient cause for dismissal. A good and sufficient cause is one that is not a pretext and that is serious enough to justify a dismissal (see above). Moreover, this cause must be lawful. In this sense, an employer could not support his decision to dismiss by a cause that runs counter to fundamental principles, being discrimination founded on the Charter.
When the termination of employment is based on non-disciplinary grounds and results from economic or administrative considerations, this involves a permanent layoff. For example, an employee could see his position abolished following a drop in business. In this matter, the employer has the burden to prove the economic difficulties or the cause of the administrative reorganization. Moreover, he will have to show that the choice of the employee to be laid off is based on objective and impartial considerations, and not on elements specific to the employee in question. In this case, such a decision would be a good and sufficient cause. The employer cannot use the pretext of a permanent layoff to get rid of an employee that he deems undesirable.
Under some circumstances, it may be difficult to determine which of the two parties (the employer or the employee) put an end to the contract of employment. Resignation cannot be assumed. It is an action that lies with the employee. If the employer invokes the employee’s resignation during a recourse against the dismissal, he has the burden of proving that the employee resigned. Under these circumstances, the Commission des relations du travail has the power to analyze all of the facts surrounding the resignation to determine its validity. A forced resignation is assimilated with a constructive dismissal (see under section 82.1 ALS the interpretation relating to resignations).
In all cases, the employer must provide preponderant proof of the facts supporting his claims. A preponderant proof is defined as proof that makes the existence of a fact more likely than its non-existence. It should be noted that the employee does not benefit, during a recourse under section 124 ALS, by the presumption that exists in his favour during a recourse under sections 122 and 122.1 ALS (see the interpretation of section 127 ALS).
Graduation of sanctions
Within the context of the recourse under section 124 ALS, an employer must impose disciplinary measures gradually, namely according to the seriousness and frequency of the reproaches addressed to the employee. As dismissal is an extreme measure; it must only be imposed when all other solutions have been exhausted, when the employee has been notified of what he is being criticized for and has had reasonable time to rectify his behaviour. Needless to say, the theory of the escalation of sanctions does not apply if the employee committed a serious fault (see the interpretation given in section 82.1 ALS regarding this notion).