Penelope works in a company and is covered by a law called the Act respecting labour standards. She is six months pregnant and will soon need to go on maternity leave.
Her boss knows and everything seems to be going well, when suddenly, Penelope is fired. She has always worked hard and has had nothing but good comments about her work. She is certain that she was fired because she is pregnant.
On top of pregnancy, there are other reasons employers can't fire or punish employees. This article explains these rules, called the rules on "prohibited practices."
The Act respecting labour standards: Who Is Covered?
The Act respecting labour standards applies to most employees in Quebec. An employee is a person who works for an employer and who earns a wage or salary.
But some workers are not covered by the Act, or are only partly covered.
To find out if the Act applies to you, see our article Workplace Protections in Quebec.
Rules on Firing and Punishments
Yes. If you are an employee covered by the Act respecting labour standards, your employer cannot fire, suspend or transfer you, discriminate against you, demote you or impose any other kind of punishment for any of the reasons listed below. These reasons are called “prohibited practices.”
- You exercised a right under the Act respecting labour standards.
- The Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST), is investigating the employer.
- You gave information to the CNESST or to one of its representatives about the application of labour standards, or you were a witness in a legal case related to this.
- Money was taken off your salary through a seizure, or could be in the future.
- You owe support payments to a former spouse or child and they will come off your salary.
- You are pregnant.
- Your employer is trying to avoid the rules of the Act respecting labour standards.
- You refused to work overtime because of your responsibilities for the health or care of your child or the child of your spouse or common-law partner, or of someone close to you or for whom you are the caregiver, even though you tried to make arrangements to allow you to work overtime.
- You made a report about something under the Anti-Corruption Act, the Act to Facilitate the Disclosure of Wrongdoings Relating to Public Bodies or the Educational Childcare Act or you have helped in an audit or investigation related to one of these laws.
- You exercised a right under the Voluntary Retirement Savings Plan Act.
- The employer wants to find a way not to respect the Voluntary Retirement Savings Plan Act.
- You have reached or passed the retirement age, or the number of years that would allow you to retire. This rule does not apply to a few types of jobs.
- You made a report under the policy to combat maltreatment of seniors and vulnerable adults.
In the situations mentioned above, there is a presumption in favour of the worker. So if a worker thinks the employer is doing something wrong and complains, the labour standards board will analyze the situation as if the employer were a prohibited practice. It is then up to the employer to show that it is not a prohibited practice.
Important! If you have been working for your employer for at least two years, you can only be let go for good and sufficient cause, for example, dishonesty, failing to do your job properly, refusal to follow instructions, etc. For more information, visit the section on "dismissal not made for good and sufficient cause" on the website of the CNESST.
Let’s go back to our example of Penelope. She thinks she was fired because she is pregnant. So, she makes a prohibited practice complaint with the CNESST. Her employer says he fired her because she stole money from the company. At this point, it is up to the employer to prove that he fired Penelope for stealing. In other words, Penelope doesn’t have to prove that her boss fired her for being pregnant. Instead, her employer has to prove that he didn’t decide to fire her for that reason.
How do I complain about a prohibited practice by my employer?
You have to make a written complaint and send it by registered mail or bring it to the CNESST within 45 days of the firing or punishment.
In the case of forced retirement, the time limit is 90 days from the time that you were fired.
For more details on what to include in your complaint, the rules on filing it and how to calculate the time limit, speak directly with the CNESST promptly.
What will happen once I make a complaint for a prohibited practice?
First of all, CNESST looks to see if your complaint falls under its responsibility. If it does, we say that the complaint is “receivable”. If not, the CNESST will let you know in writing that it is ending the process. The CNESST will give you reasons for the decision as well. You can then ask for a review of the decision, by writing to the director of legal affairs at the CNESST within 30 days.
If your complaint is receivable, the CNESST will inform you and your ex-employer.
If you and your employer agree, the CNESST will name someone to be a mediator between the two of you. A mediator is someone who helps two sides of a disagreement reach an agreement. Any information gathered by the mediator stays confidential.
If you and your employer don’t reach an agreement through mediation, the CNESST will send your complaint to the Tribunal administratif du travail (TAT or Administrative Labour Tribunal), which will hear your case.
To learn more, visit the website of the CNESST.
What do I have to prove at the hearing?
A hearing before the TAT is like a court hearing.
You will have to prove that you are an employee under the Act respecting labour standards and that you fall into one of the situations listed above about prohibited practices. The facts can be challenged by the employer.
Once you prove these two things, it is up to your employer to justify his decision to end your employment contract or take other measures against you. The employer will have to show that the firing or other measures were not illegal.
If the TAT decides in my favour, what happens next?
If the employer is guilty of a prohibited practice, the TAT can make any decision it feels is fair and reasonable. Here are examples of decisions it can make:
- order your employer to give you back your job
- order your employer to pay you the salary and other benefits you would normally have earned if you hadn’t been fired. Any money you did earn will be subtracted from the amount of the order, but employment insurance and income security payments will not be subtracted.
- order the employer to cancel a punishment or to stop employing discriminatory measures or punishments
What will happen if my employer disagrees with the TAT’s decision?
Usually, the decision of the TAT cannot be challenged.
However, your employer can still challenge it at the Superior Court if he can show that, for example, the TAT didn’t have the right to hear the case to begin with, or that it went beyond its powers.
The employee can also challenge the decision in the same way.
However, if your employer refuses to respect the decision of the TAT, you can file an official copy of the decision with the clerk of the Superior Court in the region where your employer is located. This filing makes the decision enforceable: if the employer still refuses to respect it, he could get fined.
Also, if the TAT ordered your employer to pay you money, you can take steps to have the money paid once you file the TAT’s decision with the clerk of the TAT.
My employer fired me because I came late one day. It was the first time in four years. What can I do?
If you have worked for your employer for at least two years, you can't be fired without a "just and sufficient" reason. Just and sufficient reason could be, for example, dishonesty, failure to do your job properly, refusal to follow instructions, etc.
If you are fired without a just and sufficient reason, you can file a written complaint with the CNESST within 45 days of being fired.
For more information, visit the section on "dismissal not made for good and sufficient cause" on the website of the CNESST.
I was fired because I exercised a right under the Act respecting labour standards (prohibited practice). Can I also file a claim for being fired for no good reason?
In certain cases it is possible to use both solutions since they don’t have the same goal. Here is an example of how someone could use both solutions:
Dany complained to the CNESST because his employer refused to pay his overtime hours. His employer didn’t appreciate this and fired him. Dany can take both these steps:
- a claim for prohibited practices, as explained above, because it appears Dany was fired for using one of his rights under the law
- a claim for being fired without a just and sufficient reason, as long as he meets all the requirements for this solution. To learn about these requirements, see the section on "dismissal without just and sufficient cause" on the CNESST.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.