Prohibited Grounds for Termination

Overview

A dismissal can be unlawful because of the reason that caused it, even when the employer pays adequate notice or describes the decision as a reorganization. Quebec legislation protects the exercise of employment rights, prohibits discrimination, and creates particular remedies for retaliation concerning language, pay equity, union activity and occupational health. Each remedy has its own protected facts, evidentiary rules, filing period and decision maker.

This lesson concerns provincially regulated employment in Quebec. Its central task is to connect the facts of a termination to the correct protection. An employee with only a few weeks of service may have a strong prohibited-practice complaint despite being ineligible for the general unjust-dismissal remedy. Conversely, an unfair decision does not automatically establish discrimination: the claimant must identify the protected ground or activity and satisfy the applicable test.

Learning Objectives

• Identify the protected fact, adverse measure and causal connection required by the principal prohibited-termination regimes.
• Apply statutory presumptions and distinguish a genuine independent reason from a pretext or mixed prohibited motive.
• Select the appropriate initial forum, filing period and remedy while accounting for overlapping proceedings.

Labour standards and protected conduct

Section 122 of the Act respecting labour standards, or ALS, prohibits dismissal, suspension, transfer, discriminatory measures, reprisals and other sanctions for the reasons it identifies. A prohibited practice therefore extends beyond a final termination. Reduced hours, removal of responsibilities or a retaliatory transfer can matter before anyone formally ends the employment contract.

The exercise of a right under the ALS includes seeking wages, overtime pay, vacation or a protected leave, as well as invoking protection against psychological harassment. A prior complaint to the Commission des normes, de l'équité, de la santé et de la sécurité du travail, or CNESST, is unnecessary. An employee can exercise a right by asking the employer to respect it. The employee need not recite the provision, although a purely subjective belief cannot replace facts establishing an actual or sufficiently apparent statutory right asserted in good faith.

Other grounds include a CNESST investigation, providing information or testimony concerning labour standards, pregnancy, wage garnishment and specified support-payment circumstances. Section 122 also protects reporting psychological harassment against another person to the employer or collaborating in the handling of a report or complaint. Particular reporting and participation activities receive protection under its further paragraphs, subject to the conditions of the relevant provision. Those conditions matter: the statute does not create one unlimited immunity for every disagreement labelled whistleblowing.

An employer also cannot use termination to evade the ALS. Dismissing someone shortly before two years of uninterrupted service can support an inference of evasion when combined with evidence of a deliberate strategy. Proximity to the anniversary alone does not conclusively prove the prohibited purpose. Examine who made the decision, when the alleged problem emerged and whether the explanation changed after the employee asserted rights.

Section 122.1 separately addresses dismissal, suspension or retirement because the employee has reached a retirement age or number of years of service. Read it with the right to continue working in section 84.1 and any applicable regulatory exclusion. An employee's voluntary retirement and an employer's insistence on retirement are different facts. The existence of pension eligibility does not itself establish that the employee chose to leave.

Protected absence and its conditions

Under section 79.1 ALS, an eligible employee may be absent for up to 26 weeks in a 12-month period for illness, organ or tissue donation, accident, domestic violence or sexual violence. The entitlement to this absence does not require three months of service. Paid days have separate conditions and should not be confused with the right to take protected leave. Occupational injuries fall under their own statutory regime, expressly excluded from section 79.1.

Section 79.2 requires notice to the employer as soon as possible and an explanation of the reason for the absence. Circumstances can justify a supporting document, particularly duration or repetition. However, an employer cannot demand that document for the first three periods of absence lasting three consecutive days or less within 12 months. Thus, failure to produce a medical certificate is not automatically misconduct. First determine whether the employer could lawfully require it and whether the employee complied with the notification obligation.

These rules protect the exercise of leave rights; they do not make every employment decision during an absence illegal. A genuine independent reason may still be established. The qualification of an illness as a disability can also require a separate accommodation analysis under the Quebec Charter of human rights and freedoms.

Proving a prohibited practice

The burden of proof initially rests on the employee to establish the facts activating the protection. Under the ALS mechanism, the relevant elements include employee status within the applicable coverage, a covered sanction, the protected right or circumstance, and a sufficient temporal connection between them. The complaint must also be brought within the applicable period.

A statutory presumption then attributes the sanction to the protected fact. This matters because employers rarely write that they dismissed someone for claiming overtime or becoming pregnant. The presumption changes who must explain the causal connection; it does not remove the need to establish the facts that activate it. Concomitance is assessed in context rather than through an invented universal number of days.

For pregnancy, proving that the employee was pregnant when the sanction occurred can activate the presumption without first proving employer knowledge of the pregnancy. Lack of knowledge can be relevant to the employer's answer. Confusing these stages incorrectly places the rebuttal burden on the employee.

The employer must establish another genuine and serious reason, independent of the prohibited ground. A pretext is an explanation that conceals the actual reason. Contemporaneous records, comparable treatment of other employees, replacement hiring, contradictory accounts and the decision's chronology help distinguish the two. A protected ground need not be the only motive for the complaint to succeed. A real performance concern does not cleanse a decision also influenced by pregnancy or assertion of statutory rights.

The inquiry into another good and sufficient cause is not the same as the broad review of dismissal under section 124 ALS. In Lafrance c. Commercial Photo Service inc., [1980] 1 R.C.S. 536, the Supreme Court explained the distinction between finding a genuine reason and substituting the decision maker's opinion about the appropriate severity of discipline. Severity can help expose a false explanation, but a reprisal proceeding is not automatically a general appeal against an excessive sanction.

Worked example: the overtime request and the warning

Factual Scenario

Amira has eight months of service. She asks payroll to pay overtime already worked. Three days later, her manager dismisses her for lateness, relying on one warning issued four months earlier. Recent time records show punctual attendance. The manager's message says that employees who make wage demands are creating problems.

Filing and relief under labour standards

Section 123 ALS normally requires a complaint to the CNESST within 45 days of the practice complained of. If the complaint is submitted within that period to the Administrative Labour Tribunal, failure to submit it to the CNESST cannot be raised against the complainant. The complaint period is 90 days for the retirement ground in section 122.1. Identify the actual adverse measure and its date; a later refusal to reverse a completed sanction does not safely restart time. Filing should not await the outcome of informal negotiations.

These deadlines require serious attention, but a categorical statement that the Administrative Labour Tribunal can never relieve a late complainant is incorrect. Applicable tribunal procedure permits relief where a reasonable ground explains the failure and no other party suffers serious prejudice. This is a conditional judicial determination, not a routine grace period. Preserve evidence explaining the entire relevant delay.

Mediation can produce a settlement. If none results, section 123.4 provides for referral to the Tribunal administratif du travail, or TAT, and incorporates the relevant Labour Code and tribunal procedures with adaptations. Under section 123.5, CNESST representation is available within the statutory terms for employees outside a group covered by a certification. Representation, administrative intake and adjudication are distinct functions.

The remedy can include reinstatement, restoration of rights, cessation of the sanction and compensation for lost wages and benefits. The employee must take reasonable steps to limit recoverable losses. This proceeding does not automatically yield every category of civil damages merely because retaliation occurred. Also, section 123.4 bars reinstatement of a domestic worker or a person whose exclusive function is caring for a child or a sick, disabled or elderly person in the employer's dwelling. The prohibition does not authorize retaliation; it limits that particular remedy.

Discrimination and justified employment requirements

Sections 10 and 16 of the Quebec Charter protect equality in employment, including layoff, suspension and dismissal. Discrimination requires a distinction, exclusion or preference connected to a protected ground that impairs equal recognition or exercise of a protected right. Intent to discriminate is unnecessary. The claimant must prove the connection; belonging to a protected group and experiencing an unpleasant decision do not automatically establish it.

Section 10 lists race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, disability and use of a means to palliate disability. The protected ground need only contribute to the adverse treatment. A rule applied identically to everyone may disadvantage a protected group and require justification.

Disability includes some perceived limitations, not only demonstrated inability to work. In Québec (Commission des droits de la personne et des droits de la jeunesse) c. Montréal (Ville de); Québec (Commission des droits de la personne et des droits de la jeunesse) c. Boisbriand (Ville de), [2000] 1 R.C.S. 665, the Supreme Court addressed the broad understanding of handicap. An employer cannot turn a diagnosis or predicted future risk into automatic proof that an employee cannot perform the job.

Section 20 recognizes an exception for aptitudes or qualifications required for employment. A bona fide occupational requirement requires more than managerial preference. The general approach in Colombie-Britannique (Public Services Employee Relations Commission) c. BCGSEU, [1999] 3 R.C.S. 3, includes rational connection, subjective good faith and reasonable necessity. However, the subjective good-faith limb does not apply to the Quebec Charter's section 20 defence, as explained in Gaz Métropolitain inc. c. Commission des droits de la personne et des droits de la jeunesse, 2011 QCCA 1201, para. 40. In Quebec, establish the objective rational connection between the standard's purpose and the work, and its reasonable necessity, including inability to accommodate without undue hardship. An employer's sincere belief cannot substitute for this evidence.

Reasonable accommodation requires examining feasible adjustments to the actual job and circumstances. Undue hardship means a demonstrated limit to that obligation, not mere inconvenience, customer prejudice or an unsupported prediction. Relevant evidence can concern substantial cost, the organization's resources and operations, other persons' rights, and serious safety risks. Safety assertions require evidence connecting the particular employee, the work and the risk. Accommodation does not require accepting unreasonable or unrealistic measures indefinitely.

Compare the following dismissal with the hiring and absence-limit problems in the disability and accommodation lesson, keeping each remedy's eligibility conditions distinct.

Worked example: a blanket medical exclusion

Factual Scenario

A warehouse dismisses Hugo after learning that he has a controlled neurological condition. He has performed his role successfully. Management applies a rule excluding every person with that diagnosis from every warehouse position. It has obtained no assessment of his functional limitations or of alternative duties.

Charter remedies and institutional routes

Section 49 of the Quebec Charter permits cessation of an unlawful interference and compensation for resulting material or moral injury. Punitive damages additionally require an unlawful and intentional interference. They punish and deter; they are not an automatic multiplier of lost salary. Establish the required intentional character rather than equating it with ordinary negligence or the mere fact that management deliberately issued a dismissal letter.

The Commission des droits de la personne et des droits de la jeunesse, or CDPDJ, can receive and investigate discrimination complaints under sections 71 and 74. Its role differs from that of the Human Rights Tribunal. Investigation and efforts toward settlement precede an ordinary application on the merits under section 80. That sequence does not prevent urgent protective proceedings under section 81 or proceedings against reprisals under section 82. Direct personal access to that specialized tribunal is restricted; a complainant cannot assume that any refusal by the Commission permits a fresh unrestricted tribunal application.

Timing also differs from ALS proceedings. Ordinary civil discrimination claims generally engage a three-year prescription period, subject to the nature of the claim and any special rule. Section 77 allows the Commission to decline a complaint filed more than two years after the last relevant fact. Section 76 addresses suspension of prescription through the complaint process. A complaint cannot revive a claim already prescribed when filed, and the effects of closure must be examined.

A collective agreement may place the essential dispute within grievance arbitration. Occupational-injury legislation can also restrict civil recovery. Identify jurisdiction and the injury being compensated before combining Charter and other claims. Parallel legal grounds do not permit double compensation for the same loss.

Language, pay equity and union reprisals

Sections 45 and 46 of the Charter of the French language protect workplace language rights. An employer cannot impose a prohibited sanction because a worker speaks only French or lacks sufficient knowledge of another language. Bilingual employees also retain protection for exercising their right to work in French. Requiring another language to keep or obtain a position demands proof that the duties require it and that the employer first took all reasonable means to avoid imposing the requirement.

That inquiry concerns real linguistic needs and work organization. General claims that English is useful in business do not demonstrate necessity for every position. For the nonunion complaint route, section 47 sets 45 days to approach the CNESST concerning a prohibited practice under sections 45 and 46; unresolved complaints can reach the TAT. Where a collective agreement governs, identify the applicable grievance route. The language complaint must follow its own statutory procedure even when the worker also alleges a labour-standards violation.

Pay-equity retaliation follows another route. Section 107 of the Pay Equity Act protects exercise of rights, provision of information to the CNESST and testimony concerning that Act. The employee's request must reach the CNESST within 30 days of reprisals. The Commission may seek measures from the TAT, including reinstatement. If it declines to approach the TAT, its notification opens a 90-day period for the employee to seize the tribunal. Section 108 creates a rebuttable presumption lasting at least six months from exercise of the protected right.

Union activity receives protection through sections 15 and following of the Labour Code. Identify the protected associational activity and the specific remedy rather than automatically calling it an ALS complaint. The filing period and procedural destination belong to the statute invoked. Using the same word, reprisal, across statutes does not make their processes interchangeable.

Occupational health and injury protections

Section 227 of the Act respecting occupational health and safety, or AOHS, protects a covered worker against sanctions for exercising a right or function under that Act or its regulations. Rights of refusal and preventive reassignment are important examples, but their statutory conditions must be established. Section 228 imports the relevant occupational-injury complaint rules with adaptations.

Section 32 of the Act respecting industrial accidents and occupational diseases, or AIAOD, prohibits sanctions because a worker suffered an occupational injury or exercised a right under that Act. Coverage is not confined to permanent employees who have completed probation. Filing an injury claim can constitute protected conduct even while its medical or legal admissibility remains unresolved. A clearly voluntary resignation is different from a departure actually imposed through retaliatory changes.

Under section 253 AIAOD, the written complaint must be submitted to the CNESST within 30 days of knowledge of the act, sanction or measure; a copy goes to the employer. Section 352 permits relief from a missed period for a reasonable ground. Section 255 supplies a presumption when the sanction occurs within six months of the injury or exercise of the right. Six months governs this evidentiary benefit, not the time available to file the complaint. Outside that period, a complaint can still be proved without the presumption.

The CNESST initially decides these complaints and may order reinstatement, cancellation of a sanction, cessation of reprisals and payment of lost salary and benefits under sections 256 and 257. Under section 359.1, the resulting decision is contested directly before the TAT within 60 days of notification, without administrative review as an intermediate step. That deadline is separate from the initial 30 days to complain.

Worked example: three different periods

Factual Scenario

Luc reports an occupational injury. Two months later, the employer dismisses him and explains that injured workers are too expensive. Luc learns of the final decision that day. He waits five weeks before filing with the CNESST because he believes the six-month presumption gives him six months to act.

Practice Checklist

• Identify provincial jurisdiction, worker coverage and any collective agreement before selecting a complaint form.
• Name the protected ground or activity, the specific sanction and the evidence connecting them.
• Separate the facts activating a presumption from the employer's evidence of an independent actual reason.
• Record each initial filing period, its triggering event and any later contestation deadline separately.
• Match reinstatement, wage recovery, accommodation and damages to the powers of the selected decision maker.
• Check overlapping claims, grievance elections, mitigation and double-recovery limits before settling or withdrawing proceedings.