Labour law in Québec is governed by two (2) principal laws, namely An Act Respecting Labour Standards and An Act Respecting Occupational Health and Safety. These two (2) laws have different applications but have the same objective, namely to ensure that all employees employed in the Province of Québec have safe and decent working conditions.
These laws provide not only for the rights and obligations of waged employees and of employers on various subjects, such as dismissal, salary, vacation or security at work, but also provide for different mechanisms to ensure the respect of these rights and obligations. As such, an employee who believes that his or her rights are not respected may file a complaint against his or her employer at the Labour Board Commission or at the CSST.
In 2005, new dispositions have been added to An Act Respecting Labour Standards with regards to psychological harassment at work and the employer’s obligations relating to the prevention of all forms of harassment at work.
Termination of Employment
There are several ways to terminate an employee, either by dismissal or layoff. The regulations to follow for these types of termination of employment are found in An Act Respecting Labour Standards.
The dismissal of an employee, or more commonly, a group of employees, often occurs when the activities of the company change, for example, when the workload is reduced or for economic reasons which force the employer to reduce its wage bill. This type of termination of employment is generally definite
A layoff occurs when the employers’ activities cease temporarily, for example, because they are seasonal and cease at the same period every year. This type of termination of employment is of a temporary nature and the employees who are laid off are generally called back when the employers’ activities recommence. It is a type of termination of employment very common in the construction industry, for example.
The dismissal or layoff is not related to the performance of the employees or to a fault that they might have committed, but is generally an economic decision. Thus, the employer is not obliged to give a reason to each employee justifying its decision, but must give sufficient notice of termination of employment to its employees before a dismissal or a layoff exceeding a period of six (6) months. The minimum period of the notice is set out at Article 82 of An Act Respecting Labour Standards and varies according to the number of years the employee has worked for the company.
A dismissal is a type of termination of employment linked directly to the employee. An employee may be dismissed for several reasons due to its performance, its attendance or its attitude at work. A dismissal generally concerns one (1) employee or a small number of employees.
An employee credited with two (2) years of continuous employment for the same employer who believes having been dismissed without good and sufficient cause may file a complaint in virtue of Article 124 of An Act Respecting Labour Standards. If no settlement is reached between the employee and the employer following the filing of a complaint, the complaint will be transferred to the Commission des relations du travail, who will hear the parties and render a decision. The Commission des relations du travail may order the reinstatement of the employee or order the employer to pay an indemnity to the employee equivalent to the salary that the employee would normally have earned had he not been dismissed, or order any other decision it believes fair and reasonable.
An employee who believes having been dismissed for a discriminatory motive, namely a motive provided for in Article 10 of the Charte des droits et libertés de la personne, can also file a complaint in virtue of Article 122 of An Act Respecting Labour Standards. An employee who files a complaint in virtue of this article is not required to have worked a minimum period of time in order to prevail itself of this article. An employee can work one (1) hour for an employer and may file a complaint in accordance with Article 22 of An Act Respecting Labour Standards if it believes having been dismissed for a discriminatory motive.
The complaints in accordance with these two (2) articles are not mutually exclusive and an employee can file two (2) complaints under these two (2) articles following the same dismissal. If no settlement is reached between the parties, these complaints will be heard simultaneously by the Commission des relations du travail and one (1) decision will be rendered.
Articles 81.8 to 81.20 of An Act Respecting Labour Standards provide for that an employee has a right to a work environment free of psychological harassment. Psychological harassment is defined as:
“Any vexatious behavior in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.”
The law also provides for a serious incident which causes continuous harm on the well‑being of an employee can also be considered psychological harassment, even if the notion of repetition and continuation of the harassment is not present.
The definition of psychological harassment in the Act Respecting Labour Standards is large and inclusive, and even vague. It can therefore be difficult to determine what constitutes psychological harassment and what constitutes the exercise of an employer’s right of management. An employer must take into consideration all the circumstances surrounding the persons involved when a psychological harassment situation is brought to his attention.
Furthermore, psychological harassment may exist at all levels in a company and does not necessarily imply employees with different senior ranks. Psychological harassment is not necessarily between two (2) employees only but may also occur between several persons, or sometimes a whole department mobbing against one or a few employees.
In order for an employee’s right to work in an environment free of psychological harassment, it is the employer’s obligation to put in place reasonable measures to prevent psychological harassment or to stop it when made aware of it. The measures to be taken vary according to the size and type of company as well as the number of employees. These measures can be an obligatory formation given to employees or the putting in place of a neutral committee for the prevention of harassment in the working place, as well as written information given to employees and posted in the company.
The Act Respecting Labour Standards states that the Commission des relations du travail who receives a complaint for psychological harassment can, among other things, order an employer to reinstate an employee who is a victim of psychological harassment, pay an indemnity representing the lost salary, pay moral and punitive damages or modify the employee’s disciplinary file. It is thus important for an employer to take its obligations vis‑à‑vis psychological harassment seriously.
Maître Valérie Tellier is a labour law attorney in Montreal at the law firm Azran et Associés Avocats Inc.