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The dismissal and the layoff

What are the rights of the employee who has just been dismissed?

The Parity Committee does not have jurisdiction to contest the reasons of the dismissal. All that the Parity Committee can do in the event of dismissal, is to verify that the employee receives his notice of termination, if entitled, and the final vacation pay (6%, 8%, 10% or 12%, as the case may be - see article 8 of the Decree). If it is necessary, the Parity Committee will claim from the employer the sums due to the employee.

However, three situations envisaged in article 30 of An Act Respecting Collective Agreement Decrees can lead to an intervention of the Parity Committee:

  • 1. the employee was dismissed for having provided information to a representative of the Parity Committee;
  • 2. the employee was dismissed following a complaint to the Parity Committee or following testimony in a lawsuit being referred to it;
  • 3. the employee was the object of a dismissal with the intention of re-hiring in a lesser position, in order to pay less wages.

In these three cases, the employer is liable to fines. Moreover, the employee can claim three months of wages by way of damages, and file a complaint with the labour commissioner general in the 45 days following the dismissal. This recourse aims at rehabilitation to work and compensation for loss of wages.

Otherwise, if the employee is not a union member, he or she must consult the Commission des normes du travail to find possible means of recourse. For example, if it concerns two years or more of service, a complaint for dismissal without right and proper cause could be filed. If not, if it were an illegal dismissal, as envisaged by An Act Respecting Labour Standards, in certain specific situations, or of a punishment, reprisal, suspension or displacement, the employee can file a complaint against a prohibited practice. These recourses must then also be exercised in the 45 days following the dismissal. The site of the Commission des normes du travail (see "useful links") contains all the information on this subject.

If the employee is a union member, he or she will have to contact the Union to know the recourses.

What is the difference between a layoff and a dismissal?

The dismissal is a decision of the employer to put an end to a work agreement, and this for disciplinary reasons. It is thus because, wrongly or rightly, the employer is not satisfied with the employee. It can be for reasons of punctuality, quality of work, conflicts with the employer or with the supervisor, etc.

The layoff is a suspension of employment due to lack of work. It can be following the loss of a contract, with the closing of a building, a reorganisation or cuts in the personnel, etc.

The layoff can be temporary or final. If it is temporary, the employer will record code A on the Record of Employment (for "lack of work") and will indicate a return envisaged, either at a determined date, or at an unspecified date. If the layoff is final, the employer must indicate "return not envisaged" in the suitable box.

Can the employer lay off an employee without giving a notice of termination and the final severance pay?

If it is a final layoff (return to work not envisaged), or a layoff of more than 6 months or, if it is a dismissal, the employer must give the notice of termination and pay all the sums due up to the date of departure. If the employer did not give a letter of notice within the required time, he must then pay an amount equivalent to the necessary duration of the notice.

If it is a temporary layoff, with return envisaged within 6 months, the employer is not obliged to give a notice of termination and to pay the 6%, 8%, 10% or 12% (as the case may be). On the other hand, with the expiry of the 6 months period, if the employer did not recall the employee, the latter loses any bond of employment and the notice, as well as the final vacation pay become due. The Parity Committee then has full powers to claim them if the employer refuses to pay.

Caution: for the employees members of the Service Employees' Union, Local 800, the procedures for layoff and the conservation of seniority are not the same as with the decree. Consult the Union for more information.