The Dismissal

A. Criteria for dismissal (according to Art. 2094 of the Civil Code of Québec)

Art. 2094 of the Civil Code of Québec enacts the following with regards to the termination of the employment contract:

“One of the parties may, for a serious reason, unilaterally resiliate the contract of employment without prior notice.”

The employer must therefore ensure that the dismissal complies with the laws in effect. For example, an employee may be fired for one of the following reasons (these causes are non-exhaustive):

  • Misbehavior;
  • Bad attitude;
  • Lack of aptitude;
  • Low performance; and
  • Lack of skills.

If an employer wishes to dismiss an employee without providing a notice of dismissal within the appropriate time limit, the employer in question will have to justify his motives.

It is important to note that economic reasons are not serious grounds within the ambit of Art. 2094 of the Civil Code of Quebec [5] .

Serious motives can be grounded in a single serious and isolated breach (i.e. theft of money from the cash register), but can also come from several accumulated shortcomings (i.e. repeated absences) following a series of sanctions.

The Supreme Court enunciated the following criteria in the Farber v. Royal Trust decision in order to define the term “constructive dismissal”:

1)       Unilateral decision of the employer;

2)       Substantial modification of the essential elements of the contract of employment;

3)       Refusal by the employee of the modifications made; and

4)       The departure of the employee.

Fact Pattern

Double Sanction

Louis, who has been a laborer in a furniture manufacturing plant for five months, made a mistake in his daily tasks. In response, his employer decided to suspend him for one week. This is the first time that Louis has been subjected to disciplinary measures from his employer. However, during his suspension, Louis received a notice of dismissal effective within a week.

This notice of dismissal is illegal because it is a double sanction without just and sufficient cause.

Recommendation to employers: In a situation such as this one, the employer could issue a written notice to the employee stating that if the mistake is repeated, the employee may be dismissed.

Constructive dismissal

Valerie has been working 40 hours per week, Monday to Friday from 8 am to 17 pm at the hourly rate of $ 18 for two (2) years as a receptionist. Overnight, her employer tells her that she will now work 20 hours a week, Monday to Friday from 8 am to 12 pm at an hourly rate of $ 10.

This could be considered a case of constructive dismissal, since the employer indirectly pushed the employee to find another job to maintain her working conditions.

Finally, the court must consider whether, in the same situations, a reasonable person would have believed that such modifications were substantial changes to his employment contract.

The Supreme Court held in the Potter   c.   New Brunswick Legal Aid Services Commission decision that constructive dismissal can take two forms   :

1)    A single unilateral act that involves a substantial breach of an essential express or implied condition of the employment contract; or

2)   A series of acts which, taken together, show the intention of the employer to no longer be bound by the contract and renders the situation intolerable for the employee.

This decision discusses the administrative suspension with pay of an employee and specifies that it must be justified and reasonable, because otherwise it would constitute a   constructive dismissal.

For more information on constructive dismissal, please consult the blog 5 things to know about wrongful dismissal.

Significant Distinction: Dismissal and Termination

Annie has been working as a waitress for the same employer for seven years. Her employer dismissed her under the pretext of a decline in sales, and financial difficulties. One week after her dismissal, Annie learns that her former employer hired another person to perform the same tasks at the same hourly rate.

This is a dismissal without just and sufficient cause, since the employer cannot invoke the dismissal here because he replaced Annie.

For more information on the differences between dismissal and termination, please consult the blog 3 things to know about the differences between a dismissal and a termination of an employment contract.

B. Issuing a written notice of termination of employment

The employer must issue a written notice to the employee before terminating the employment contract between the parties. The amount of time between issuing the notice and the employee’s departure varies depending on the duration of the continuous services provided for by the dismissed employee.

The law imposes:

Termination of employment contract

An employer may terminate an employee’s contract without notice if the employee has accumulated less than three (3) months of continuous services.

The notice must contain the following information:

  • Name and address of the employer;
  • Area of business;
  • Name of the employee concerned;
  • Reason for dismissal; and
  • Expected date of dismissal;

If an employer fails to issue a termination notice to the employee or if the employer does not comply with the statutory deadlines, the employer will be required to compensate the employee.

An employee who believes to be entitled to a minimum leave period, or compensation in accordance with Art. 2092 of the Civil Code of Québec may make a demand to his employer. 

Calculation of the notice of severance pay (general rate employee)

  1. Determine the duration of the notice based on the number of years of continuous service;
  2. Determine the weekly salary of the former employee, excludingovertime;
  3. Calculate the compensation from this information; and
  4. Payment of compensation (if applicable). In cases where compensation is payable, the employer must pay it at the time of the dismissal

C. Notice of termination

It is important to understand that in the context of a contract of indefinite duration, by providing reasonable notice of termination, the employer may dismiss his employee whether he has serious grounds or not.

Art. 2091 of the Civil Code of Québec states:

Either party to a contract for an indeterminate term may terminate it by giving notice of termination to the other party.

The notice of termination shall be given in reasonable time, taking into account, in particular, the nature of the employment, the specific circumstances in which it is carried on and the duration of the period of work.”

Quebec law recognizes that bonuses and stock options are part of the total compensation and are generally due as part of the leave period. [6]

Art. 2092 of the Civil Code of Québec states:

The employee may not renounce his right to obtain an indemnity for any injury he suffers where insufficient notice of termination is given or where the manner of resiliation is abusive.”

Recommendation to employees: Note that an employee is also required to provide reasonable notice to the employer before leaving. However, case law recognizes that this period is shorter than that of the employer, in particular because of the power imbalance between both parties.

It is worth mentioning that a clause providing for the notice period required concerning the termination of the employment contract does not bind the parties since Art. 2091 and Art. 2092 of the Civil Code of Québec states that the length of notice must consider the circumstances surrounding the termination. Since it is impossible to foresee the circumstances surrounding the termination of a contract at the time of its formation, a contract of employment cannot include such a clause.

It is also noteworthy that the contract of employment ends at the end of the notice period and not when a party gives notice of its unilateral termination. This ensures that the work contract continues to exist during the notice period. The only thing that changes is that it is known when the contract will end. Therefore, mutual obligations which exists between both parties remain in force until the end of the notice period.

Remedies: In the event of a work contract of indefinite duration, the party who is a victim of a unilateral termination which does not meet the conditions of Art. 2091 of the Civil Code of Quebec may complain to the courts of common law. The employee usually will get damages equivalent to the salary he would have received during the notice period prescribed under Art. 2091 of the Civil Code of Québec 

Under the doctrine of abuse of rights, the employer who decides to unilaterally terminate a contract in an abusive, malicious or excessive manner may be held liable for moral damages.

This would be particularly true if a party commits an unintentional error which causes a prejudice that goes beyond what normally arises from a unilateral termination, for example, damage to reputation, or humiliation suffered by the employee.

Could the employee also claim moral damages, following the pain and/or suffering he has suffered?

To the extent that the employer has exercised the right to terminate employment unilaterally, he cannot be blamed. The fact remains that the employee has the option to unilaterally terminate the contract at any time without cause. One cannot complain by claiming moral damages.

[1] CMP Advanced Mechanical Solutions Ltd. c. Snow, (C.A., 2012-09-20), 2012 QCCA 1692, SOQUIJ AZ-50896842, 2012EXP-3585, 2012EXPT-2018

[2] 2014QCCA147, par. 18.

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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.

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