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Recourse against unlawful dismissal

 

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Introduction

An Act respecting collective agreement decrees provides that an employee who is dismissed, suspended or moved in certain specific situations, is entitled to exercise his rights against the employer.

This document explains the recourse in force if you find yourself in such a situation, as well as the different steps you may encounter in order to exercise your rights.

Conditions applying to the recourse

The law states three measures that you may oppose -dismissal, suspension or transfer - regardless of seniority, when one or the other of the following situation occurs:

  • 1. You have given an information to a representative of the Parity Committee regarding the Decree
  • 2. By reason of a complaint, information, statement of offence, or of testifying in a prosecution or investigation respecting the same
  • 3. The employer intends to re-engage you in an inferior employment in order to evade the provisions of the Decree.

If you think one of these situations apply to you, you can file a complaint with the Tribunal administratif du travail (TAT).

Example:

An inspector from the Parity Committee comes at your work place and questions you to verify the application of the Decree.
The employer hears about it and he fires you right away. You are entitled to file a complaint with the Tribunal administratif du travail (TAT), even if the employer gives another reason as a pretext for firing you. The employer will have to demonstrate that he had another good and sufficient reason to fire you other than having provided information to the inspector.

Caution!

If you are dismissed, suspended or transferred for another reason than the three situations mentioned above, you are not entitled to this recourse. You should then contact the Parity Committee or the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) to find out if any other recourse apply to your situation.

Delay for filing a complaint

You must file your complaint with the TAT within 45 days of calendar following the moment you were dismissed, suspended or moved. The delay starts at the moment the measure was taken against you, i.e. the day you were dismissed, suspended or transferred.

How to file a complaint

You can send a written complaint either by fax or mail, or you can file it at the Tribunal's office, which is best to make sure the complaint is registered within the required delay (see "Institutional organizations", in section INDEX, besides).

There is no compulsory form required by the TAT, but it is preferable to use the one they provide, available only in French (see form: "Plainte en vertu du Code du travail ou d'une autre loi"). It can be sent by mail or completed at the Tribunal's office itself. You can also download the form from the Tribunal's website (see "Institutional organizations", in section INDEX, besides). Moreover, you must send a copy of your claim to the employer.

You will receive an acknowledgement of receipt shortly after filing your complaint. You will then be invited to contact the TAT if you wish to attend a mediation attempt with your employer.

Mediation

The TAT offers both sides a free mediation service to try to settle the case out of court. The mediation is conditional to both sides' agreement.

All the written or verbal information collected during mediation is confidential. It cannot be considered admissible evidence if a hearing takes place after mediation has failed.

If mediation fails, you can always ask that your complaint be submitted to the TAT.

Practical tips:

It is important to have an idea of what would be a reasonable agreement before you go to mediation. It might be useful to consult someone familiar with this kind of recourse. You can ask the opinion of a legal advisor, lawyer, or a community organization dedicated to defend workers' rights (See "Community organizations" in section INDEX, besides).

Caution!

If you come to an agreement, you might be asked to renounce any other claim or recourse taken against your employer. If you had filed a salary claim with the Parity Committee, for example, make sure you don't renounce to your recourse before discussing it with the inspector in charge.

Notice of hearing

If there is no settlement out of court, the TAT will send you a notice advising you of the moment and the place of the hearing. This notice also includes information on postponement conditions for the date of hearing and summons for witnesses. Actually, if you want to make sure that a person comes to the hearing to testify in your favour, it may be better to have him or her called as witness by means of subpoena. You may ask the TAT to issue the subpoena but you will need to contract a bailiff to notify the witnesses. Note that the persons called as witnesses must be notified at least five (5) days prior to the hearing date.

If you do not have a lawyer or legal advisor, it might be worthwhile to pay for a legal opinion to evaluate your case and help you prepare the hearing. You may also verify whether you are entitled to legal aid (see "Institutional organizations", in section INDEX, besides).

The hearing

The hearing before the Tribunal administratif du travail is similar to a hearing held by any other court, although a little more informal. The persons attending the hearing will be the labour commissioner, the employer, his lawyer and yours, if applicable, the witnesses and yourself. If one side is not present, the TAT may nevertheless proceed to the hearing and deliver the decision without hearing the other side's version.

Any document you want to produce or refer to during the hearing has to be available in three copies.

Since you are the plaintiff, you are the first person to testify. In the first place, you must demonstrate that:

  • 1. Your claim was filed within the legal delay;
  • 2. You are or you were employee of the employer sued;
  • 3. A measure provided by article 30.1 of An Act respecting collective agreement decrees (dismissal, suspension or transfer) was taken against you;
  • 4. One of the three situations stated above applied to you;
  • 5. There is a relation between this situation and the measure taken against you by the employer.

Once you have shown these five points, there is a presumption in your favour, which means that the burden of proof now belongs to the employer. He has to prove he had another good and sufficient reason, which was not a pretext, to prescribe the measure he took against you.

When the employer or his witnesses testify, you have the right to cross-examination. If you have a witness testifying for you, the same rule apply to the employer.

When both sides have produced their proofs and witnesses, they must then plead their cause. The first to plead is the employer, then the employee. It means you must unfold the facts of the case and present your arguments to convince the TAT of the validity of your case. Once you have pleaded, the hearing is closed. Within 90 days following the hearing, the TAT will deliver a written decision stating the grounds upon which it has been delivered. The decision will be sent by mail to you and to the employer.

Practical tips:

Always keep a polite and moderate attitude during the hearing. The labour commissioner must choose between the employer's version and yours. More often than not, he must base his decision only on both sides' testimony. Your attitude during the hearing as well as your testimony will be taken into account to establish your credibility. If you question a witness who does not tell the truth, it is more convincing to demonstrate it by the questions you ask him than by accusing him of being a liar.

The decision

The decision of the TAT is a final one. If you win, it may compel the employer to reimburse the amounts (salary and benefits) lost because of the measure taken against you, it may cancel that measure and/or reintegrate you to your place of work, according to the situation. After the decision was delivered, if you do not wish to return working for this employer, you may then resign without losing the amounts due to you according to the decision.

The quantum

If the labour commissioner decided that the employer dismissed, suspended or transferred you illegally, he may command the employer to reintegrate you at work and to pay you an indemnity. However, the decision does not specify the amount due (i.e. the quantum). You must reach an agreement with the employer on the amount of the indemnity.

If you do get an indemnity from the employer, you might have to reimburse welfare or unemployment benefits received during the period for which you were compensated by the employer. For more information, contact your welfare or unemployment office or a specialized community organization (See "Institutional organizations" or Community organizations" besides).

Application to fix the quantum of the indemnity

If there is no agreement with the employer on the amount of the indemnity, you will then have to send him a formal notice requiring him to pay the amount due with a detailed explanation of your calculation (See example: "Formal notice with calculation of the indemnity"). If the employer still does not agree to pay, you will have to ask the labour commissioner to establish the quantum by sending the TAT an application to fix the quantum (See example: "Requête en fixation de quantum").

Caution!

If you were dismissed, you have the obligation of minimizing the consequences of your situation. You could have to demonstrate that you have been seriously looking for work during the period running from your dismissal to the hearing of the case.

Refusal of the employer: filing of the decision

If the employer still refuses to pay after the quantum was established, you will have to ask the TAT the authorization to file the decision at the Superior Court. The TAT will try to have the employer obey the decision, but if the attempt is ineffective, it will give you the authorization. The filing must be made within the 6 months following the date the decision was delivered. You will need a certified true copy of the decision. You must enquire at the office of the clerk of the Superior Court of yours or you employer's district of residence (See example: "Dépôt d'une décision du Tribunal administratif du travail"). You should also file the decision regarding the quantum, if applicable. The same delay apply. Then, you must send a copy to the employer along with a formal notice requiring him to obey the decision of the TAT (See example: "Formal notice: Submission to the decision of the Tribunal administratif du travail").

Filing the decision of the TAT enforces it as if it were a judgment from the Superior Court. Thus, the employer who still refuses to obey could be found guilty of contempt of court and could be liable to a fine with or without imprisonment. Moreover, once the decision is registered, you are allowed to proceed to a seizure to collect the amount stated by the TAT when the quantum was fixed. Enquire with a bailiff to know how to carry over the seizure of the employer's assets (see "Institutional organizations", in section INDEX, besides).

Conclusion

The present guide explains all the steps you have to go through when the employer systematically refuses to follow the decisions of the Tribunal administratif du travail. However, most of the cases are not so complex and get settled at mediation. Otherwise, most of the employers comply with the decisions of the TAT. Nevertheless, each case has his particularity. This is why this guide does not replace a lawyer or legal advisor who could advise you according to your specific situation.

Practical tips:

  • Keep a copy of the complaint you filed with the TAT: you will need it if you have to file an application to fix the quantum. Also keep carefully all correspondence with the TAT (acknowledgement of receipt, notice of hearing, decision, etc.)
  • Keep a copy of all relevant documents related to your work: record of employment, pay stubs, correspondence with the employer, even if prior to the events (comments or estimate of you performance, disciplinary measure, notice of termination, etc.). Also keep copy of all correspondence (formal notice or others) that you sent to the employer.
  • Do not wait until the day of the hearing to write down your detailed version of the events: you should start taking notes as soon as an unjustified measure is taken against you. Write down in a notebook all relevant information as soon as it happens: date of the event, what was said, who was witness, etc.
  • Make sure the TAT can always join you if you move or change phone number during the process. It can take many months before the whole process is completed, so always have your file updated.
  • Keep every document in three copies for the hearing before the TAT.