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Complaint concerning dismissal without just and sufficient cause

Workers who have been employed by the same employer for at least 2 years may file a complaint if they believe their employer has dismissed them without just cause.

An employer may terminate a worker's employment. This is part of the exercise of their right to manage. However, if a dispute is to be decided by a judge after a termination, layoff or dismissal, the employer must be able to show that there are just and sufficient grounds for their decision.

Some situations may be considered a dismissal without just and sufficient cause.

Example

Sophie has held the same job for 5 years. Her employer dismisses her, claiming economic difficulties. A few days later, Sophie learns that her employer hired another person, at the same wage, to perform the exact same tasks that she had been doing.

Sophie could file a complaint for dismissal without just and sufficient cause. The employer cannot invoke termination for economic reasons, since they replaced Sophie.

Other situations could be considered a dismissal without just and sufficient cause, including a constructive dismissal or a double sanction.

Constructive dismissal

Constructive dismissal is a roundabout way for an employer to dismiss a worker by presenting the end of employment as a termination or layoff. The worker may also be forced to resign owing to significant and unjustified changes in their working conditions or owing to various forms of harassment.

Example

  • Patrick has been working as a mechanic 40 hours a week for 10 years. He has always worked full time Monday to Friday from 8:00 a.m. to 5:00 p.m. at an hourly rate of $22.00. His employer tells him that, from now on, he will work 20 hours a week from Monday to Friday from 1:00 p.m. to 5:00 p.m. at an hourly rate of $15.
  • It could be a case of constructive dismissal. The changes are significant and could force Patrick to leave his job to find working conditions equivalent to those he had before.

Double sanction

An employer may not reprimand a worker twice for the same mistake. For example, if an employer suspends a worker for a mistake they made, the employer may not subsequently decide to dismiss the worker for the same reason.

Example

  • Carl has been working as a plant storekeeper for 10 years. His employer accuses him of making a mistake when placing an order and suspends him for 5 days. This is the first time Carl has ever been accused of making a mistake and disciplined. During his suspension, he receives a registered letter informing him of his dismissal.
  • This is a double sanction and, therefore, a dismissal without just and sufficient cause since, for the same mistake, the employer first suspended Carl and then dismissed him.
What does not constitute dismissal without just and sufficient cause

Example 1

Anne has been a representative for a cosmetics company for 5 years. During a meeting, her employer informs her that she is being suspended pending an investigation into allegations of theft. The results of the investigation lead to the conclusion that Anne had indeed committed theft. Her employer meets with her again to dismiss her.

The dismissal is justified and is not a double sanction, since the employer waited for the results of the investigation before deciding to dismiss Anne.

Example 2

Maxime has been working for the same company for 3 years. His employer, facing serious economic difficulties, had to lay off several employees. Maxime is dismissed along with all his coworkers who have the same number of years of uninterrupted service.

This is an unfortunate but legal termination. The employer is experiencing real economic difficulties and Maxime is not the only one to have lost his job.

Example 3

Claudie has been a secretary/receptionist for 4 years. She has always worked 40 hours a week, 36 hours during the day and 4 hours one evening a week. Due to a decline in business, her employer decides to no longer open in the evenings. As a result, the employer has to change Claudie's schedule to 36 hours a week. Claudie claims it is a constructive dismissal.

This is not a constructive dismissal, since no major changes were made to Claudie's working conditions.

How the complaints process works

Filing a complaint

There are 2 ways for a worker to file a labour standards complaint:

There are several steps in the complaints process. Throughout the process, the worker is asked to cooperate with various CNESST officers, in particular by providing the information and documents requested.
 

Important

The worker has 45 days from the date of their dismissal to file their complaint.

Analysis of the complaint

Once the complaint is filed, a member of the CNESST contacts the worker to verify whether the complaint is admissible. Among other things, they make sure that: 

  • the grounds for the complaint are provided for in the Loi sur les normes du travail (LNT)
  • the worker is an employee within the meaning of the LNT
  • their employer is subject to the LNT 
  • the person has no other recourses under a collective agreement or other act 
  • the complaint was filed within the time limit prescribed by the LNT

If the CNESST can follow up on the complaint, it notifies the worker and checks whether the disagreement can be resolved by communicating with the employer, for example, to explain the standards that apply. If this is not possible, a number of options are provided for to try to resolve the situation.

If the CNESST considers that it cannot follow up on the complaint, it notifies the worker and explains why. If the person disagrees with the decision, they have 30 days to contest it by completing the Request for review of the decision form. The CNESST has 30 days to respond.
 

Mediation

When a complaint is filed, the CNESST offers a free mediation service to the worker and their employer. They are free to accept or refuse mediation.

If mediation is refused or if an agreement cannot be reached, other options are proposed to try to resolve the situation.

Transfer of the file to the CNESST’s legal affairs department

Important

A complaint concerning dismissal without just and sufficient cause is heard by the Tribunal administratif du travail.

If the judge determines that the complaint is founded, they may:

  • order the employer to reinstate the worker in the job they held before their dismissal
  • order the employer to pay the worker an indemnity equivalent to the wages lost since their dismissal
  • render any other decision they consider fair and reasonable

In the case of a domestic and a personal caregiver, the judge may not order the employer to reinstate the worker in the job they held prior to their dismissal.

Laws and regulations

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