Labor law in Quebec is governed by two main laws: the Act respecting labor standards and the Act respecting occupational health and labor. These two laws have different fields of application, but aim at the same goal, that is to say, to provide each employee working in the province of Quebec with safe and decent working conditions.
These laws not only provide for the rights and obligations of employees and employers on various topics such as dismissal, pay, vacation or work safety, but also provide for various mechanisms to ensure that these rights and obligations are respected. , such as the possibility for an employee who estimates his rights are not respected to file a complaint against his employer with the Commission of work standards or the Committee on Occupational Health and Safety
New provisions were also added in 2005 to the Act respecting labor standards regarding psychological harassment at work and the employer’s obligations to prevent all forms of harassment in the workplace.
The Termination of Employment
There are many ways to terminate the employment of an employee, whether by dismissal, layoff or firing. The rules to be followed for these three types of job termination are provided for in the Act respecting labor standards
The dismissal of an employee, or more generally of a group of employees, generally occurs when company’s activities change, for example when the workload decreases or when economic reasons force the employer to reduce its mass, salaries among others. This form of termination is usually final.
A layoff occurs when the employer’s activities temporarily cease, for example because they are of a seasonal nature and cease at the same time each year. This type of termination is temporary in nature, and laid-off employees will generally be recalled when the employer’s activities resume. This is a type of job termination is very common in the construction field, for example.
A dismissal or layoff is not related to the performance of the employees concerned, or to an error that they may have committed, but are generally decisions of an economic nature.The dismissal layoff is not related to the performances of the salaried employees concerned, or to a mistake which these employees might have made, but generally to the decisions of an economic nature. The employer therefore is not obligated to furnish a specified motif to each salaried employee justifying his decision, but, however, must give the salaried employee sufficient notice before proceeding with the dismissal or the layoff of a duration of more than six (6) months.
The minimal notice period is set out in Article 82 of the Act respecting the labour standards, and varies according to the number of years during which the employee has worked for the company.
Firing is more or less a form of termination of employment in relation with the employee himself: an employee can be fired for various motifs related to his performance, his abilities, or his attitude at work. Firing generally concerns a single employee or a very small number of employees.
Firing is rather a form of termination of employment in connection with the employee himself: an employee may be fired for various reasons related to his performance, his attendance or his attitude at work. Firing generally concerns only one employee, or a very small number of employees.
An employee who has two years of continuous service for the same employer and who believes that he has been fired without a just and sufficient cause may file a complaint under Article 124 of the Act respecting labor standards. If no agreement is concluded between the employee and the employer pursuant to the filing of the complaint, it will be transferred to the labour relations commission, which will hear the parties and render a binding decision. The labor relations commission may at that time order the reinstatement of the employee or the payment of an indemnity equivalent to salary lost, the lost salary, or order any other measure that he deems just and reasonable.
An employee who believes that he has been dismissed for a discriminatory reason, that is to say, one of the reasons provided for in article 10 of the “Charter of Human Rights and Freedoms”, may also file a complaint under section 122 of the Act respecting labor standards. An employee who files a complaint under this section does not have to prove a minimum period of employment to be able to avail himself of this article: an employee may have worked one hour for an employer and file a complaint under the section 122 of the Standards Act if he believes he has been dismissed for a discriminatory reason.
The complaints under these two articles are not mutually exclusive, and an employee may file two complaints according to these two articles following the same dismissal. These complaints will be heard at the same time by the Labor Relations Board, if there is no agreement between the parties, and will be the subject of a single decision.
The Labour Standards Act provides in its articles 81.18 to 81.20 that an employee is entitled to a workplace free from psychological harassment. Psychological harassment is defined as:
“A vexatious conduct manifested either in the conduct of words, acts or repeated actions, which are hostile or unwanted, which infringes the dignity or the psychological or physical integrity of the employee and which leads, for the latter, A harmful workplace.”
The Act also provides that a single serious event which infringes the employee’s physical or psychological integrity and which produces a continuing harmful effect on the employee’s well-being may also be considered psychological harassment, even if the notion of repetition and continuity specific to harassment is not present.
This definition of psychological harassment in the Labour Standards Act is broad and inclusive, and is rather vague. It may therefore be difficult to determine what constitutes psychological harassment and what constitutes the employer’s exercise of its management right. The employer must therefore take into account all the circumstances surrounding the people involved when a situation of psychological harassment is brought to his knowledge.
On the other hand, psychological harassment can occur at all levels in a company, and does not necessarily involve employees of different hierarchical levels. Psychological harassment does not necessarily only occur between two employees, but may involve several people, and sometimes even a whole department.
The consequence to the employee’s right to a workplace free of psychological harassment is the obligation of the employer to put in place reasonable means to prevent the onset of harassment, or to stop it if it is brought to his knowledge. The means that must be put in place vary depending on the size and type of the company and the number of employees. These can range from compulsory training offered to employees on the subject to the setting up of a neutral workplace harassment prevention committee or there can be written information given to employees and posted in the company.
The Labour Standards Act provides that it is the Labour Standards Board that hears the complaint of psychological harassment and may among other things, order the employer to reinstate the employee who is the victim of psychological harassment, to pay compensation representing the lost wages or even to pay him moral and punitive damages or to modify the disciplinary file of the employee in question. It is therefore important for an employer to take his or her obligations concerning psychological harassment seriously. Contact your labour lawyer (Montreal) for more information.
Me Valérie Tellier is an attorney in labour law in Montreal and is a member of the cabinet. To be removed.