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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 122.1

Prohibited practices

No employer or his agent may dismiss, suspend or retire an employee, practice discrimination or take reprisals against him on the ground that he has reached or passed the age or the number of years of service at which he should retire pursuant to a general law or special act applicable to him, pursuant to the retirement plan to which he contributes, pursuant to the collective agreement, the arbitration award in lieu thereof or the decree governing him, or pursuant to the common practice of his employer.

1982, c. 12, s. 6; 2002, c. 80, s. 62.

Interpretation

This section offers the employee a recourse against a prohibited practice if he believes that he was dismissed, suspended, forced to retire or was discriminated against or suffered reprisals on the ground that he reached or passed the age at which he should retire.

This recourse is in addition to those stipulated in section 122 ALS, which protects, among other things, the exercise by the employee of a right ensuing from the Act. This right, which is to remain at work and to choose the time of his retirement, lies with the employee. This decision must be free, voluntary and clearly expressed by the employee (see the interpretation of section 84.1 ALS in this regard). The concomitance of the measure related to the employee’s age results in the application of the presumption in his favour. This implies that the employer has the burden to demonstrate that the imposing of the measure ensues from another good and sufficient cause.

In the exercise of a recourse against a prohibited practice, the employee is always free to raise the application of the Charter of Human Rights and Freedoms prohibiting discrimination based on age. The Commission des relations du travail is competent to hear and rule on such a dispute.

The legislator has prohibited forced retirement even if a law, a pension plan, an agreement (see the definition given in paragraph 4) of section 1 ALS, including an agreement – mutual or forced – on the conditions of employment), an arbitral award in lieu of collective agreement, a decree or the practice that develops or has developed at the place of business of the employer might provide for such forced retirement.

Under section 3.1 ALS, this provision applies to every employee and every employer, subject to the exceptions stipulated in the Regulation exempting certain categories of employees and employers from the application of Division VI.1 and section 122.1 of the Act respecting labour standards.

These exceptions are:

  1. an employee who works exclusively as a fireman; or,
  2. an employee who is a member of the Sûreté du Québec (a member of a municipal police force is not included in this exception).

See the interpretation of section 84.1 ALS.

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