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Guide Interpretation

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Part I - Act respecting labour standards

CHAPTER V - Recourses

Recourse against certain differences in treatment

Sections
121.1
121.2
121.3
121.4
121.5
121.6
121.7
121.8
122
122.1
122.2
123
123.1
123.2
123.3
123.4
123.5

Section 122

Dismissal prohibited

No employer or his agent may dismiss, suspend or transfer an employee, practice discrimination or take reprisals against him, or impose any other sanction upon him:

  1. on the ground that such employee has exercised one of his rights, other than the right contemplated in section 84.1, under this act or a regulation;

    1. 1.1. on the ground that an inquiry is being conducted by the Commission in an establishment of the employer;

  2. on the ground that such employee has given information to the Commission or one of its representatives on the application of the labour standards or that he has given evidence in a proceeding related thereto;

  1. on the ground that a seizure by garnishment has been or may be effected against such employee;

    3.1 on the ground that such employee is a debtor of support subject to the Act to facilitate the payment of support (chapter P-2.2);

  1. on the ground that such employee is pregnant;
  1. for the purpose of evading the application of this act or a regulation;
  1. on the ground that the employee has refused to work beyond his regular hours of work because his presence was required to fulfil obligations relating to the care, health or education of the employee’s child or the child of the employee’s spouse, or because of the state of health of a relative within the meaning of section 79.6.1 or a person for whom the employee acts as a caregiver, even though he had taken the reasonable steps within his power to assume those obligations otherwise.
  1. on the ground of a disclosure by an employee of a wrongdoing within the meaning of the Anti-Corruption Act (2011, chapter 17) or on the ground of an employee’s cooperation in an audit or an investigation regarding such a wrongdoing.

  1. on the ground that such employee has exercised a right arising from the Voluntary Retirement Savings Plans Act (chapter R-17.0.1);
  2. for the purpose of evading the application of the Voluntary Retirement Savings Plans Act; or
  3. on the ground of a communication by an employee to the inspector general of Ville de Montréal or the employee's cooperation in an investigation conducted by the inspector general under Division VI.0.1 of Chapter II of the Charter of Ville de Montréal (chapter C-11.4).
  4. on the ground that the employee has, in good faith, disclosed a wrongdoing or that the employee has cooperated in an audit or investigation regarding such a wrongdoing in accordance with the Act to facilitate the disclosure of wrongdoings relating to public bodies (2016, chapter 34) or Chapter VII.2 of the Educational Childcare Act (chapter S-4.1.1).
  5. on the ground of a report of maltreatment made by an employee or of the employee’s cooperation in the examination of a report or complaint of maltreatment under the Act to combat maltreatment of seniors and other persons of full age in vulnerable situations (chapter L-6.3);
  6. on the ground that the employee has sent information to the syndic of a professional order to the effect that a professional has committed an offence referred to in section 116 of the Professional Code (chapter C-26); or
  7. (Not in force) on the ground of a communication of information made in good faith by the employee under section 56 of the Act respecting the Autorité des marchés publics (chapter A-33.2.1) or of the employee’s cooperation in an audit or investigation conducted on the ground of such a communication.

    An employer must of his own initiative transfer a pregnant employee if her conditions of employment are physically dangerous to her or her unborn child. The employee may refuse the transfer by presenting a medical certificate attesting that her conditions of employment are not dangerous as alleged.

1979, c. 45, s. 122; 1980, c. 5. s. 10; 1982, c, 12. s. 5; 1990, c. 73, s. 55; 1995, c. 18, s. 95; 2002, c. 80, s. 61; 2011, c. 17, s. 56; 2014, c. 3, s. 3; 2013, c. 26, s. 134; 2016, c. 34, s. 44.

Interpretation

An employee may exercise a recourse if he is dismissed, suspended, transferred, if the employer practices discrimination against him or takes reprisals against him or if the employer imposes any other sanction by reason of one of the nine grounds mentioned in section 122 ALS. The reinstatement as well as an indemnity equivalent to the wages and other benefits that the employee was deprived of by the sanction can be granted if the recourse is upheld.
On May 1, 2003, the Act added a new reason under the protection of section 122 ALS. The employee is protected in the case where the employer wants to take action due to an inquiry made by the Commission in one of the employer’s establishments.


Moreover, the protection granted to the employee in relation to the refusal to work beyond his regular working hours for obligations related to care, health or education is no longer limited to a minor child. Indeed, this refusal extends to his child, whether or not he is a minor, to the child of his spouse or by reason of the state of health of his close relatives. The employee must have taken the reasonable means at his disposal to assume his parental or family obligations otherwise.


Moreover, the right of an employee to be absent owing to sickness, accident or criminal offence is now stipulated in Division V.0.1 of the Act (see the interpretation of sections 79.1 to 79.6 ALS). In this case, the condition required by the legislator in the application of presumption (see section 123.4 ALS) is the absence motivated by reason of sickness and not necessarily the proof of such sickness. The employee who exercises this right benefits from protection regarding the aforementioned sanctions by way of the recourse stipulated in paragraph 1) of section 122 ALS.

Three situations constitute a “wrongful act”:

  1. Violation of a federal or Québec legislative provision or a regulation made under such a law, if it involves corruption, embezzlement, collusion, fraud or infl uence peddling, among other things, the awarding of a contract, the obtainment or execution of contracts awarded in the course of an organization’s duties or a person from the public sector;
  2. Abuse of public funds or property or severe contract mismanagement in the public sector;
  3. Ordering or advising a person to commit a wrongful act as defi ned in paragraphs 1 and 2.

On June 13, 2014, s. 122 of the Act was again amended with the addition of para. 10. The Act stipulates that anyone may

communicate to the inspector general of Ville de Montréal certain information that is relevant to the realization of his mandate.

For the purposes of such communication, the individual benefits from protection aimed, among other things, at the absence

of reprisals.

As of July 1, 2014, the Act stipulates two new grounds (paras. 8 and 9) that fall under the protection of s. 122. Accordingly,

the businesses concerned must offer their employees a Voluntary Retirement Savings Plan. The deadline for satisfying this

obligation differs depending on the size of the business. Employers who have 20 or more employees covered must offer a VRSP

by December 31, 2016. Businesses with between 10 and 19 employees covered will have until December 31, 2017 to do so.

For employers with between five and nine employees covered, if the government deems it necessary, the deadline will be delayed

but not beyond January 1, 2018.

The Act obliges employers with at least five employees to offer the VRSP to their employees if they do not already offer them

a retirement plan. However, the employer is not obliged to contribute to the VRSP.

“Employees covered” means employees 18 years of age or over with one year of uninterrupted service within the meaning

of the Act respecting labour standards who do not benefit from an employer-sponsored group pension plan in respect of which

a payroll deduction may be made or who do not have a registered pension plan within the meaning of the Taxation Act.

Employees covered by the Act will be automatically registered in the VRSP but may withdraw from it.

The Commission des normes du travail plays an oversight role in the administration of the Act in the same way as the Autorité

des marchés financiers and the Régie des rentes du Québec.

 

 


Sanctions

Dismissal occurs when the employer terminates an employee’s employment. This term must be interpreted broadly to include layoffs, the non-renewal of a working contract in the case of a renewable contract, non-recall to work, indefinite suspension, etc.
A suspension consists of temporarily interrupting the employee’s employment for a specified period, without severing his contract of employment. The employee is deprived of his employment and his wages for that period. This is generally a disciplinary sanction.
The transfer of an employee corresponds to a change in working conditions. The employee may be assigned to another position or another work place, for instance, or receive a significant reduction in the number of work hours, a reduction in wages, a substantial modification of his duties, a reduction in the level of responsibility, etc.
Protection is generally extended to reprisals, discriminatory practices and any other penalty that an employer is likely to impose on an employee for the reasons set out in section 122 ALS. These concepts therefore cover any change in the scope of work or working conditions of an employee and any measure of retaliation taken by the employer against an employee for any of the reasons mentioned in section 122 ALS.
The procedure to exercise such recourse is provided in sections 123 ALS and following.

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