Published by Leonardo Calcagno

Dismissal for serious cause, often referred to as justifiable or disciplinary dismissal, is one of the most drastic means available to an employer to terminate an employment relationship. In Quebec, this type of dismissal is strictly regulated by case law and the Act respecting labour standards. It imposes a duty of rigour on the employer regarding the justification of the decision, the procedures followed, and proof of the seriousness of the alleged conduct.

What is a serious reason in labor law? 

Unlike a dismissal without just cause, which can result in compensation or reinstatement, a dismissal for serious cause abruptly terminates the employment contract without notice or compensation. Indeed, it is presumed to result from serious misconduct attributable to the employee. However, the demonstration of this misconduct should not be taken lightly: it must seriously undermine the bond of trust between employer and employee or significantly harm the proper functioning of the company. The seriousness of the breach is assessed by taking into account the specific context, the overall circumstances, and the principle of proportionality in the sanction. There are many grounds that may justify immediate dismissal, but each deserves careful analysis: repeated absences without justification; flagrant insubordination; harassment; theft; major lies; damage to the employer’s reputation; or serious violations of internal rules. 

However (and this is where Quebec case law comes in), a disciplinary dismissal cannot be based on a simple blunder or an isolated act that was not preceded by disciplinary history or warnings—unless the act in question is extremely serious. Before considering a disciplinary dismissal, the employer must prove that it followed a progressive approach to its sanctions. It is not enough to list the grievances… It is essential to demonstrate that formal warnings were issued; that the consequences of inappropriate behavior were clearly explained to the employee; and that the employee was given an opportunity to rectify their actions. This concept of measured escalation in sanctions is intended to offer the employee a fair chance to redeem themselves. When this procedure is neglected, the courts often tend toward a judgment declaring the dismissal unjustified… even if the misconduct committed is proven.

Distinction between disciplinary and administrative dismissal

It is crucial to understand the nuance between two forms of contract termination: disciplinary dismissal and dismissal for professional incompetence. The former results from misconduct—an act considered unacceptable—while the latter occurs when the employee, despite not failing in their obligations, finds themselves unable to meet the inherent requirements of their position. Take the example of an employee who, despite the training received and the support provided by their company, fails to achieve the set objectives. The employee could be dismissed for professional incompetence.

In each situation (whether for a proven error or a lack of competence), it is up to the employer to prove that they acted fairly: this requires a methodical, documented approach that complies with the essential principles of labor law.

The burden of proof rests on the employer

When an employee challenges their dismissal for serious cause, whether before the Administrative Labour Tribunal or another competent forum, the burden of proof rests entirely on the employer. The employer must demonstrate, using concrete, documented, and credible facts, that the alleged misconduct was serious enough to justify an immediate termination of the employment relationship. This involves proving not only that the behavior occurred, but also that it was incompatible with continued employment. Testimonies, event reports, emails, or any other form of written communication can play a decisive role in the tribunal’s decision.

The Importance of Respecting Procedural Rights

The lack of a fair process can also lead to the dismissal being reclassified as a dismissal without just and sufficient cause. For example, if the employer does not allow the employee to explain themselves, or if the internal investigation is biased, the decision may be overturned even if misconduct is acknowledged. Transparency, a neutral investigation, and respect for the right to be heard are fundamental elements of the procedure.

Time Limits for Appeals and Legal Strategy

It is essential for employees to understand that, when faced with a dismissal for just and serious cause, agility is essential: an appeal must be filed within 45 days of notification of the dismissal, in accordance with the minimum standards in force. However, it should be noted that this time limit may vary if a collective agreement is at stake or depending on the specific nature of the appeal being considered. It is therefore prudent (and often crucial) to promptly seek the expertise of a lawyer specializing in employment law. This will allow for a thorough examination of the steps to be taken.

As for the employer, even if the reason for the dismissal appears legitimate, caution is required. One imperative is emerging: to seek the advice of legal counsel before taking any action. Why? Because a meticulously prepared file—with impeccable documentation and a rigorously applied procedure—is the surest defense against costly litigation. Moreover, it ensures alignment with Quebec’s specific legal requirements.

How OLS can support you

At OLS, our team of employment lawyers in Montreal assists both employers and employees facing dismissal for cause. For employees, we offer a thorough analysis of the situation, an assessment of possible remedies, and representation before the appropriate authorities to assert your rights.