3 Things to know about the differences between a dismissal and a termination of an employment contract

  1. Dismissal vs termination*:

It is important to distinguish and define the differences between these two (2) concepts:

Dismissal: An employer dismisses the services of this employee due to their behavior, performance or other personal factors.

Termination: An employer no longer requires an employee’s services for the tasks and duties at hand. There is no correlation or causal link between the termination and the performance or behavior of the employee as termination is mainly due to organizational and economic factors of the company.

  1. Termination vs constructive dismissal:

A constructive dismissal has recently been raised in the case Romeo et Antoine Laoun Inc[1]. The Tribunal administratif du travail (TAT) recalls three (3) criteria to distinguish a termination from a constructive dismissal:

  • When the employer is assessing which employee will be kept or let go, the criteria must be objective and reasonable (seniority, proficiency, performance, etc.);
  • The assessment criteria must be applied in an objective, uniform and homogeneous manner;
  • Whether or not the employer maintains an ‘’employment link’’ with the terminated employee;

A. Termination

  • In terms of the 3rd criterion, some factors can be observed regarding the employer’s intention implying termination:
    • Offer from the employer to modify the employee’s employment conditions such as part time tasks instead of full-time tasks;
    • Offer from the employer to relocate geographically the employee;
    • Possibility for the employee to move to a vacancy internally.

B. Constructive dismissal

  • In the opposite scenario, one important factor can be taken into consideration implying a constructive dismissal:
    • Whether there is another employee hired after being terminated;
    • For instance, subsequent to the termination and without offering the job opening to the previous employee, the employer hires a new employee;
    • Moreover, it can be a major factor of the employer’s intention if the employee would have accepted the vacancy.

For more information on constructive dismissal, please visit: https://schneiderlegal.com/labour-law/the-dismissal/

  1. Non-obligation of the employment link:
  • As confirmed in the case Groupe Technologies Desjardins[2], it is important to note that there is no obligation from the employer to preserve any employment link with the employee in a case of termination.
  • The employment link is only a tool to analyze and distinguish a termination from a constructive dismissal.
  • Each case is different based on the facts and circumstances.

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*Termination can also be defined as ‘’ layoff ’’

[1] Romeo et Antoine Laoun inc., 2019 QCTAT 2887 (CanLII)

[2] Groupe technologies Desjardins inc. c. Tribunal administratif du travail, Division des relations du travail, 2018 QCCS 4557

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The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.