5 Things to know about wrongful dismissal

When an employee is dismissed, there are some elements that can be observed in order to analyze whether it is a wrongful dismissal or not, based on the Act respecting labour standards (ALS)[1], Canadian Labour Code and the Civil Code of Quebec.

  1. Dismissal with cause of termination
  • After two (2) years of uninterrupted services in the same enterprise, an employee can be dismissed only with a good and sufficient cause.
  • Without a good and sufficient cause, the employee may lodge a complaint against the employer based on article 124 of the ALS for wrongful dismissal.
  • A good and sufficient cause may be defined as a serious misconduct as:
    • Insubordination;
    • Incompetence;
    • The employee is in serious breach of his obligation of loyalty;
    • Twofold penalty.
  • A suspended employee for a misconduct committed on his duties that receives a dismissal letter during the suspension time could be an example of twofold penalty. This might be considered a wrongful dismissal if the employee has been, indeed, sanctioned twice for the same misconduct.

For more information on remedies for a wrongful dismissal, please visit: https://schneiderlegal.com/labour-law/remedy/

  1. Dismissal based on discrimination
  • Based on article 16 of the Charter of human rights and freedoms[2]; ‘’ No one may practise discrimination in respect of (…) dismissal (…) of employment.’’.
  • Discrimination[3] may be defined as a distinction, exclusion or preference in regards of:
    • Race, color, ethnic or national origin;
    • Sex;
    • Gender identity or expression;
    • Pregnancy;
    • Sexual orientation;
    • Civil status;
    • Age;
    • Religion;
    • Political convictions;
    • Language;
    • Social condition;
    • Handicap;
  • Article 20 of the Charter[4] establishes some criteria that might be excluded from discrimination, such as; abilities or qualification requirements for a specific position.
  1. Dismissal of a pregnant woman
  • Dismissal based on medical conditions such as pregnancy is considered a wrongful dismissal.
  • This type of wrongful dismissal is covered by discrimination based on the Charter[5], see previous section, but also by article 122 of the ALS as illegal.
  • An employee who believes she is being wrongfully dismissed due to her pregnancy, may lodge a complaint against the employer based on article 124 of the ALS up to forty-five (45) days after dismissal.
  1. Loss of time vs time theft
  • Nowadays, cybersurfing during working hours is a common practice. It is important to distinguish two (2) concepts; loss of time and time theft.
  • Loss of time is considered a productivity issue and may affect the performance of the employee.
  • Time theft is a breach by the employee in his obligation of loyalty and diligence[6] towards his employer. This is a serious matter that can be considered as serious as fraud.
  • These are some examples that have recently been considered time theft by jurisprudence: sleeping at work, going grocery shopping during working hours, doing personal business during working hours.
  • Some criteria can be observed in order to distinguish loss of time to time theft:
    • Collaboration in the investigation conducted;
    • Recognition of misconduct;
    • The expression of remorse and the willingness to change;
    • The absence of any attempt to conceal his unreasonable use of the Internet;
    • The nature of the sites visited, the usefulness to the employee;
    • Frequency and duration of personal Internet use;
    • Lack of internal policy regarding the use of technology at work;

This is a non-exhaustive list as each case shall be analyzed on a case-by-case basis.

  • Nevertheless, in both cases, loss of time and time theft can be considered a good and sufficient cause for a dismissal.
  • Except for some serious misconduct or definitive breach of trust, it is important to mention that a gradation of disciplinary sanctions is required by the employer before dismissing an employee. Otherwise, it might be considered a wrongful dismissal.
  1. Psychological harassment and wrongful dismissal
  • Although those two (2) topics are often related, it is important to distinguish them as they are subject to two (2) different remedies.
  • Psychological harassment, which includes sexual harassment, is covered by articles 81,18 and 123,6 of the ALS and article 240 of the Canadian Labour Code.
  • Can be considered as harassment:
    • Vexatious conduct of a repetitive or serious nature;
    • A hostile or unwanted behavior;
    • An infringement on dignity or physical or psychological integrity;
    • A detrimental work environment.
  • To the contrary, the following cannot be considered harassment:
    • Normal exercise of the right of management;
    • Some difficult or conflictual situations at work.
  • In a situation where an employee would experience some harassment from his employer or from co-workers, followed by a wrongful dismissal, this employee shall lodge two (2) different complaints against his employer:
  • Harassment based on article 123.6 of the ALS;
  • Wrongful dismissal based on articles 122 and 124 of the

Each case is different based on the facts and circumstances.

To schedule an appointment with one of our lawyers, please visit: https://schneiderlegal.com/meet-one-of-our-lawyers/

[1] N-1.1 – Act respecting labour standards

[2] C-12 – Charter of human rights and freedoms

[3] Article 10, C-12 – Charter of human rights and freedoms

[4] C-12 – Charter of human rights and freedoms

[5] C-12 – Charter of human rights and freedoms

[6] Article 2088, CCQ-1991 – Civil Code of Quebec

If you are looking for a law firm with reasonable rates, quick and efficient turnaround time for your files and who provides personalized and effective follow-ups, call Schneider Attorneys at (514) 439-1322 ext. 112 or email us at info@schneideravocat.com

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.

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