Dismissal for Reasons Relating to the Employee

Overview

An employee repeatedly ignores a safety instruction. Another employee tries to meet a new production standard but cannot do so. Both situations concern the employee's performance, yet they require different analysis. A justified response depends on the obligation breached, the explanation for the failure, the opportunity to correct it and the protection governing the employment relationship.

Quebec law also distinguishes entitlement to compensation for missing notice from protection against losing the job without justification. A civil court, a grievance arbitrator and the Tribunal administratif du travail (TAT) do not possess interchangeable remedial powers. Payment of notice does not itself defeat a complaint under section 124 of the Act respecting labour standards (ALS).

This lesson concerns provincially regulated employment. It addresses disciplinary and administrative dismissal, the civil-law framework, collective-agreement protection and the statutory complaint for dismissal without good and sufficient cause. Prohibited grounds such as discrimination and reprisals must also be checked whenever the facts raise them.

Learning Objectives

• Distinguish culpable misconduct from non-culpable incapacity and apply the appropriate justification analysis.
• Determine access to the civil, grievance and statutory dismissal remedies, including the filing deadline.
• Match the proven wrong to reinstatement, a substituted sanction or properly calculated compensation.

Classify the Breach Before Assessing the Response

Article 2085 CCQ situates work within a relationship of direction or control. The employee must perform competently and diligently, comply with lawful employment instructions and respect obligations of loyalty. Management's authority is constrained by the contract, applicable legislation and any collective agreement. An instruction does not become enforceable solely because a supervisor issued it.

A disciplinary measure (mesure disciplinaire) addresses culpable conduct. Deliberate disobedience, dishonesty or avoidable negligent performance can justify discipline, depending on the facts. An administrative measure (mesure administrative) addresses a non-culpable inability to perform: inadequate skills, a physical or psychological limitation, or loss of a qualification required for the work. The letter's label is evidence of the employer's explanation, not a binding legal classification.

The same outward event can belong to either category. Absence without a legitimate explanation may involve misconduct, while absence caused by illness may require an administrative analysis and accommodation. Poor output might arise from deliberate refusal, inadequate training, a changed workload or incapacity. Identify the source of the shortfall rather than assuming that every missed target is misconduct.

Where disability or another protected characteristic is implicated, reasonable accommodation (accommodement raisonnable) must be considered before concluding that employment cannot continue. Medical limitations, potential adjustments and the actual demands of the position matter. An assertion that accommodation is inconvenient does not demonstrate undue hardship. Conversely, the legal duty does not automatically require maintaining a relationship in which the employee cannot perform the work despite the accommodation required by law.

Loss of a licence, authorization or insurability requires equally concrete examination. Determine whether the qualification is genuinely necessary, whether the loss is temporary and what the governing rules permit. A third party's decision does not automatically resolve the employer's obligations under the collective agreement or human-rights framework.

Worked example: the employee who cannot reach the target

Factual Scenario

A workshop installs new equipment. Lina's output falls below the new standard despite sustained effort. Her supervisor gives her two written reprimands without arranging instruction, then dismisses her for insubordination. The records show that she followed directions and repeatedly requested training.

Assess Serious Reason under the Civil Code

Article 2091 CCQ permits termination of an indeterminate contract on reasonable notice, subject to other applicable legal restrictions. Article 2094 CCQ permits either party to terminate without notice for a serious reason (motif sérieux), whether the contract is fixed-term or indeterminate. The distinction affects the remedy: ending a fixed-term contract early cannot ordinarily be justified merely by offering the notice appropriate to an indeterminate relationship.

The employer bears the burden of establishing the serious reason relied upon to dispense with notice. The breach must be sufficiently grave, assessed objectively and contextually, to justify abrupt termination. A loss of trust asserted without underlying facts does not answer that question. Nor can an operational or economic difficulty be converted into employee misconduct to avoid the notice obligation.

In Le François c. Canada (Procureur général), 2010 QCCA 1243, the contextual analysis considers the nature of the misconduct and proportionality. Relevant circumstances include responsibility, seniority, autonomy, knowledge of the wrongdoing, personal benefit, past conduct and workplace policies. An apparently serious incident still requires evaluation of the employee's actual conduct and circumstances.

The expressions serious reason and good and sufficient cause (cause juste et suffisante) have substantial jurisprudential connections. Their similarity does not erase the differences between proceedings. A court deciding a civil notice claim does not obtain a grievance arbitrator's power to replace dismissal with a suspension. The applicable instrument and remedy must remain visible throughout the analysis.

If the employer fails to prove serious reason, the civil court cannot impose an intermediate reduction of reasonable notice merely because the employee was somewhat at fault. The rejected approach sometimes called near cause would improperly create a middle category between justified immediate termination and the ordinary entitlement to notice. The court must decide whether the legal threshold was met, then assess the compensable loss.

Evidence discovered after termination can raise questions of relevance and admissibility. The source recognizes that earlier misconduct unknown to the employer may sometimes be considered; late additions can nevertheless undermine credibility. Do not assume that a newly assembled list of allegations either must be excluded or automatically cures the original explanation. Distinguish the date of the conduct, the date of discovery and its relationship to the dismissal.

Apply Corrective Discipline and Proportionality

Collective agreements generally protect employees against dismissal without good and sufficient cause. The statutory complaint uses a closely related analysis. The first question is whether a breach occurred. The second is whether its seriousness, in all the circumstances, justifies termination rather than a less severe response.

Progressive discipline (gradation des sanctions) ordinarily gives an employee a real opportunity to correct misconduct. Warnings and suspensions may precede dismissal. There is no universal mandatory sequence of exactly three warnings. Read any negotiated progression and assess the gravity, repetition and surrounding circumstances. Particularly grave misconduct can justify immediate dismissal without every intermediate step.

The employer must apply reasonable rules consistently. Comparable misconduct ordinarily calls for comparable treatment unless a relevant distinction, such as a valid disciplinary history or different responsibility, explains the difference. Gather evidence about how the rule was communicated and enforced. Selective punishment may undermine the asserted justification even where the underlying event occurred.

A culminating incident (incident culminant) requires a current incident that independently warrants discipline. Only after proving that incident can an admissible disciplinary history influence the sanction. Old concerns cannot establish a new breach that the evidence fails to prove. Disputes about the type and status of earlier incidents require attention to the agreement and applicable jurisprudence.

An amnesty clause (clause d’amnistie) may normally prevent reliance on older disciplinary measures. Section 97.1 ALS limits that result for violence: an agreement or decree cannot prevent an employer imposing discipline for misconduct involving physical, psychological or sexual violence from considering an earlier disciplinary measure involving one of those forms of violence. The provision does not revive every expired warning for every type of misconduct. Current section 97.1.

The employer cannot ordinarily impose two final disciplinary sanctions for the same breach. A provisional administrative suspension pending investigation is different from a completed disciplinary punishment. Classification, the communication to the employee and the true purpose of the first measure matter before concluding that subsequent dismissal creates double punishment.

Administrative incapacity calls for its own response. Communicate the deficiencies and expectations, provide appropriate assistance and allow a meaningful opportunity to improve where improvement is possible. The source cites Costco Wholesale Canada Ltd. c. Laplante, 2005 QCCA 788, and Commission scolaire Kativik c. Association des employés du Nord québécois, 2019 QCCA 865, in this context. A performance problem cannot be resolved through automatic escalation of punitive suspensions when the employee cannot control its cause.

Worked example: an old warning and an unproved incident

Factual Scenario

A unionized employee, Marc, has an admissible warning for falsifying a timesheet. His employer later suspects another false entry and dismisses him on the basis of his disciplinary history. Access records establish that the allegedly missing hours were worked at a second authorized site.

Choose the Grievance Route Where It Governs

A unionized employee generally contests dismissal through the grievance and arbitration procedure. Read the clauses dealing with discipline, administrative termination, probation, notice of allegations, investigation and filing deadlines. Contractual procedural protections can affect validity; they should not be replaced by a generic assumption about what a fair employer would usually do.

Section 100.12(f) of the Labour Code gives the arbitrator broad disciplinary powers to confirm, vary or set aside the employer's decision and substitute a just and reasonable decision. A sufficiently precise collective-agreement clause prescribing the sanction for the particular fault restricts that discretion. In the ordinary case, the arbitrator may substitute a suspension for dismissal, but cannot increase the sanction beyond that imposed by the employer.

Administrative measures involve a more limited power of intervention unless the agreement confers additional authority. The arbitrator examines whether the measure is justified and whether the employer acted abusively, discriminatorily or unreasonably, rather than exercising the same general power to select a different disciplinary sanction. This explains why accurate classification affects the result as well as the analysis.

An agreement excluding a category of employees from dismissal grievances does not automatically remove statutory protection. Syndicat de la fonction publique du Québec c. Québec (Procureur général), 2010 CSC 28, requires attention to the hierarchy of sources. First read the agreement subject to public-order legislation, setting aside incompatible provisions. Then determine whether the arbitrator has remedial powers globally equivalent to the statutory remedy. The result determines the appropriate forum.

Establish Admissibility under Section 124

The claimant must satisfy the statutory entry conditions before the employer has to establish good and sufficient cause. The employee must fall within the ALS, have at least two years of uninterrupted service in the same enterprise and have experienced a dismissal. The complaint must be timely, and no other equivalent remedial procedure must displace it.

Uninterrupted service (service continu) concerns the subsisting employment relationship. It is not simply the number of days physically worked or the seniority assigned by an employer's policy. Qualifying seasonal interruptions, leave or successive fixed-term contracts can preserve continuity. Section 97 ALS also protects continuity on a qualifying alienation or concession of the enterprise. Identify any period during which the person was genuinely outside employee status before counting it.

Senior managerial personnel are excluded from this remedy, unlike every employee who supervises others. Section 3(6) ALS must be applied to actual authority and organizational functions. Independent contractors and other excluded categories require separate attention. A worker's job title, invoicing arrangement or contractual label does not conclude the classification inquiry.

A genuine redundancy for business reasons falls outside the section 124 unjust-dismissal remedy. The TAT can determine whether the alleged redundancy is real or conceals a dismissal. Voluntary resignation likewise differs from dismissal, while employer conduct amounting to constructive dismissal may engage the remedy.

The absence of an equivalent remedial procedure is a substantive condition. Another procedure must be accessible to the employee, binding, sufficiently impartial and capable of examining justification and providing comparable relief, including reinstatement. An ordinary claim for damages does not displace section 124. An internal appeal allowing management merely to reconsider its own decision is not automatically equivalent.

An available grievance procedure generally prevents parallel reliance on section 124. Missing its filing deadline or encountering union inaction does not by itself create eligibility for a substitute statutory complaint. Conversely, a procedure inaccessible to the particular employee cannot simply be invoked in the abstract. Identify the route and available powers rather than relying on the existence of a document labelled an appeal policy.

Preserve the Deadline and Understand the Process

Section 124 ALS requires a written complaint to the CNESST within 45 days of dismissal. Filing with the TAT within that period also protects against the objection that the complaint was sent to the wrong one of those two bodies. Preserve proof of transmission. The normal starting point is when dismissal takes effect, rather than an earlier announcement; the source also recognizes filing after announcement without awaiting its future effective date. Unclear layoff or constructive-dismissal situations require particular care in identifying when the employee knew the employment was ending. Section 124 and admissibility.

The deadline is strict. Section 15 of the Act to establish the Administrative Labour Tribunal permits relief where a reasonable ground explains the failure and no other party suffers serious prejudice. Relief is not automatic, and settlement discussions do not establish an extension. Record both the chronology and the evidence explaining any delay.

Sections 125 and 126 ALS provide for consensual mediation and referral to the TAT if no settlement results. The CNESST may require written reasons from the employer, with a copy available to the employee on request. Section 126.1 governs CNESST representation and excludes employees belonging to a certified bargaining unit from that representation entitlement. These roles must be distinguished from the tribunal's adjudication.

A settlement can constitute a transaction under arts. 2631 and following CCQ. Once validly concluded, its scope may prevent continuation of the complaint. Distinguish advance waiver of future statutory protection from settlement after a dispute has arisen. Confirm consent, what claims are settled and what obligations remain to be performed.

At the hearing, the employee proves disputed entry conditions; the employer establishes good and sufficient cause on a balance of probabilities. The TAT applies its own procedural framework while respecting the right to be heard and an impartial decision-maker. Section 130 ALS makes its decision final and without appeal. Statutory internal review and judicial review are distinct mechanisms with their own conditions, rather than a fresh appeal on the merits.

Match the Remedy to the Applicable Regime

For an indeterminate contract challenged solely under civil law, monetary compensation ordinarily replaces insufficient notice. Reinstatement (réintégration) is generally unavailable in that setting. Fixed-term loss is assessed by reference to the unexpired term, subject to the applicable contract and damages rules. Identify salary and other proven pecuniary benefits rather than restricting the calculation to base wages.

Article 1479 CCQ requires mitigation (minimisation du préjudice) through reasonable efforts to avoid increased loss. The employee should preserve job-search records and reasonable explanations for declining an offer. The employer bears the burden of establishing an avoidable aggravation and its effect on compensation. A contractual liquidated departure indemnity can require a different analysis from ordinary notice damages.

Moral injury and punitive damages require separate legal foundations and proof. Under art. 1621 CCQ, punitive damages require statutory authorization; section 49 of the Charter of human rights and freedoms addresses unlawful and intentional interference with a protected right. There is no automatic punitive award merely because the employer failed to prove serious reason.

Civil personal claims are generally subject to the three-year prescription in art. 2925 CCQ; the particular one-year rule for injury to reputation appears in art. 2929 CCQ. Neither period replaces the 45-day statutory complaint deadline. Parallel proceedings may also raise binding-decision and double-compensation issues, which must be assessed before asserting that every remedy can simply be accumulated.

Under section 128 ALS, reinstatement is normally the starting point, with compensation for lost remuneration and other just and reasonable orders. Carrier c. Mittal Canada inc., 2014 QCCA 679, emphasizes the need for a real obstacle before substituting a monetary solution where the employee seeks return. An employer's unwillingness to resume the relationship does not alone make reinstatement impossible.

The final paragraph of section 128 limits relief for domestic workers and persons exclusively providing the specified personal care to compensation for wages and benefits lost. Their eligibility for a complaint must be distinguished from that restriction on remedy. Section 128 and its exception.

Worked example: lost wages and loss of employment

Factual Scenario

The TAT finds that Nadia was dismissed without good and sufficient cause. She seeks reinstatement, but the employer establishes a real obstacle making return impracticable. Nadia has made reasonable job-search efforts. The evidence identifies past lost remuneration and a separate loss associated with the permanent end of the employment.

Practice Checklist

• Identify the actual breach, its voluntary or involuntary character and any protected characteristic.
• Preserve instructions, training, warnings, investigation records and comparable disciplinary treatment.
• Check proportionality, progressive discipline, amnesty provisions and possible double punishment.
• Determine contract duration, employee status, uninterrupted service and access to an equivalent remedy.
• Protect the 45-day complaint deadline independently of civil prescription and grievance deadlines.
• Separate missing notice, lost wages, loss of employment, moral injury and any authorized punitive claim.
• Explain the competent forum, the available remedy and the evidence required for each disputed issue.