Sources of regulation
The sources of Quebec labour regulation consist of the Labour Standards Act (LSA),[1] the Labour Code (as amended in 1994),[2] the Quebec Civil Code of 18 December 1991, the 1975 Quebec Charter of Human Rights and Freedoms and the 1975
Canadian Charter of Rights and Freedoms.
The LSA is the main source of reference. It
establishes the minimum rules of protection from which no derogation is
permitted by contract or agreement.
Scope of legislation
The scope of the LSA is limited to the employers and
the employees, as defined in sections 1(7) and 1(10).[3] The LSA applies to the employee
regardless of where he or she works. It also applies to whoever:
- performs
work both in Quebec and outside Quebec for an employer whose residence,
domicile, undertaking, head office or office is in Quebec; and
- is domiciled
or resident in Quebec, and who performs work outside Quebec for an employer
whose residence, domicile, undertaking, head office or office is in Quebec.
Sec. 3 of
the LSA specifies which employees are excluded from the scope of the Act,
as follows:
- an
employee whose exclusive duty, in a dwelling, is to take care of or provide
care to a child or to a sick, disabled or elderly person in his or her
place of residence, if such care does not secure profit to the employer;
- an
employee who is governed by the act respecting labour relations in the
construction industry;
- an
employee for whom the Government sets the remuneration or the applicable
rate;
- a
student who works in an establishment as an intern; and
- senior
managerial personnel, who nevertheless benefit from the right to certain
absences and certain leaves for family or parental matters and the right
to remain at work beyond the normal retirement age.
The provisions relating to psychological harassment
and retirement apply to every employee and to every employer, even those
excluded from the application of the Act pursuant to sec. 3.
Contracts of employment
Employment contracts may be for a fixed
period, a given task, or for an indeterminate period.
Termination of employment
The contract of employment may
terminate in certain circumstances which do not require the employer’s
initiative, including through:
- the
expiry of a fixed-term contract; and
- force majeure.
Dismissal
An employer is free to break
the contractual relationship with his or her employee. However, this freedom
is restricted because the employer must respect certain rules of law.[4] Termination of employment must
be justified by a valid and adequate reason (just cause). The sanction
of dismissal is considered the maximum penalty which should only be resorted
to if a less severe penalty is not appropriate.[5]
Prohibited practices
According to the LSA (sec.
122), every employee may file a complaint with the “Commission des
normes du travail” (CNT),[6] notably if he or she believes
that he or she was dismissed for one of the following reasons:
- on
the ground that the employee exercises a right accrued under the LSA;
- on
the ground that an inquiry is being conducted by the Commission in one
of employer’s establishments;
- on
the ground that the employee has given information to the Labour Commission
or one of its representatives on the application of labour standards or
that he or she has given evidence in a proceeding related thereto;
- on
the ground that a seizure by garnishment has been, or may be, effected
against such employee;
- on
the ground that such employee is a debtor of support subject to the Act
to facilitate the payment of support;
- on
the ground that the employee is pregnant;
- for
the purpose of evading the application of the Act or a regulation; and
- on
the ground that the employee has refused to work beyond his or her regular
working hours because his or her presence was required to fulfil obligations
relating to the care, health or education of his or her minor child, even
though the worker had taken all reasonable steps within his or her power
to assume those obligations otherwise.
According to section 123, an employee who believes
he or she has been victim of a practice prohibited by section 122 and
who wishes to assert his or her rights must do so before the CNT within 45
days of the occurrence of the practices complained of. In
the case that an employee believes that he or she has been dismissed, suspended
or retired on the ground set forth in sec. 122.1, which also
prohibits the dismissal of an employee on the ground that he or she has reached
retirement age, the time limit to file such a complaint is then increased
to 90 days (sec. 123.1).
Notice and prior procedural safeguards
An employer must give written
notice to an employee before terminating his or her contract of employment
(sec. 82, LSA); however, this section does not apply to an employee
who has less than three months of uninterrupted service, to a worker with
a fixed-term contract or for a particular enterprise whose contract expires,
to a worker who has committed a serious fault, or to a worker whose contract
of employment has been terminated because of a fortuitous event.
In accordance with sec. 82 of
the LSA, the notice period shall be as follows:
- one
week if the employee has less than one year of uninterrupted service;
- two
weeks for between one and five years of uninterrupted service;
- four
weeks for between five and ten years of uninterrupted service;
- eight weeks
upon ten years or more of uninterrupted service.
The law does not call for there
to be prior notice, information, consultation or agreement vis-à-vis bodies
representing the employees, or for administrative authorization.
As regards collective dismissals, the LSA specifies
that the termination of employment by the employer, including a layoff
for a period of six months or more, involving not fewer than 10 employees
of the same establishment in the course of two consecutive months constitutes
a collective dismissal. In this case, an employer
must comply with some requirements (see secs. 84.0.1 to 84.0.15,
LSA).[7]
The
minimum notice period that an employer must give before proceeding with
a collective dismissal is:
- eight
weeks for a collective dismissal involving 10 to 99 employees;
- 12
weeks for a dismissal involving 100 to 299 employees;
- 16
weeks in the case of a termination concerning 300 employees or more.[8]
Instead of
giving the notice of collective dismissal to the Minister of Labour, an
employer must now give an advanced notice to the Minister of Employment
and Social Solidarity ranging from eight to sixteen weeks, depending on
the number of employees affected, and transmit a copy to the CNT as well
as to any certified association representing the employees affected by
the dismissal.
Furthermore,
the employer may not change the wages of the affected employees during
the required notice period, or, where applicable, the group insurance and
pension plans recognized in the employees’ place of employment.
Severance pay
In the ordinary course, the
applicable statutes in Quebec require notice to be given in redundancy terminations, but do not
mandate the payment of severance pay.
Avenues for redress
Sec. 124 of
the LSA provides for redress in the case of a termination in the absence
of a valid, adequate reason (just cause), for an employee credited with two years of uninterrupted service in
the same enterprise.[9] The petition must be made within
45 days of the dismissal to the CNT.
If the complaint is deemed receivable,
the CNT notifies the employee that it will follow up on the complaint,
informs the employer that a complaint against a dismissal has been filed
and designates a person who will offer both parties its mediation service.
If no agreement is reached,
the CNT refers the complaint without delay to the “Commission des Relations
du Travail” (CRT).[10]
Pursuant to sec. 128 LSA,
if the CRT considers that the employee has been dismissed without good
and sufficient cause, the Commission may:
- order
the employer to reinstate the employee;
- order
the employer to pay the employee the sums lost since his/her dismissal;
- render any
other decision that the CRT believes fair and reasonable.
The decision
of the CRT is without appeal. It binds both the employer and the employee (sec. 130,
LSA).
Further information
[1] See: http://www.iijcan.org/qc/laws/sta/n-1.1/20060412/whole.html
[2] See: http://www.canlii.org/qc/laws/sta/c-27/20040323/whole.html
[3] “Employer” means any person who has work done by an “employee”, the
latter meaning a person who works for an employer and who is entitled to
a wage; this word also includes a worker who is a party to a contract,
under which he or she (1) undertakes to perform specified work for
a person within the scope and in accordance with the methods and means
determined by that person; (2) undertakes to provide, for the carrying
out of the contract, the material, equipment, raw materials or merchandise
chosen by that person and to use them in the manner indicated by him or
her; and (3) keeps, as remuneration, the amount remaining from the
sum he has received in conformity with the contract, after deducting the
expenses entailed in the performance of that contract.
[4]For example, this right given to every party to end an indefinite
term contract should not be exercised with the intent of injuring another
or in an excessive and unreasonable manner which is contrary to the requirements
of good faith, subject to damages even in the case of sufficient notice
for dismissal.
[5] G. Trudeau: “La jurisprudence élaborée
par les commissaires du travail dans leur nouvelle compétence en matière
de congédiement sans cause juste et suffisante”, in Revue du Barreau,
Oct.-Dec. 1992, Vol. 52.
[6] See: http://www.cnt.gouv.qc.ca/en/index.asp
[7] These provisions do not apply to establishments
whose activities are seasonal or intermittent or to layoffs for a period
of less than six months, as was previously the case. Furthermore, they now
exclude employees who have less than three months of uninterrupted service.
[8] An employer who fails to give sufficient notice is now required to
pay to each dismissed employee an indemnity equivalent to his/her regular
wages, excluding overtime, for a period equal to the difference between
the period of notice actually given and the minimum period prescribed by
the LSA.
[9] See: http://www.cnt.gouv.qc.ca/en/recours/congediement.asp.
The 2003 amendments to the LSA have reduced, from three to two years, the
minimum period of continuous service required for an employee to be eligible
to file a complaint for unjust dismissal pursuant to sec. 124 L.S.A.
[10] The CNT also sends the file to the Direction
des affaires juridiques to offer the employee the opportunity of being represented
before the CRT, where applicable. To obtain information about the CRT, see: http://www.crt.gouv.qc.ca/
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