The current COVID-19 pandemic has increased unemployment rates worldwide, and Quebec is no exception.
In June 2020, the unemployment rate was 10.7%, a decrease of 3 percentage points compared to May 2020. At the peak of the crisis, in April, the unemployment rate reached 17.0%. This situation puts employers in an advantageous position with the gradual economic recovery, as more people will be looking for jobs if they are not called back by their employers due to restructuring or, worse yet, due to permanent closures within certain businesses.
However, this sudden spike in unemployment is temporary, and the Quebec Government estimates that we will end 2020 with an unemployment rate of 8% and expects a return to full employment—about a 5% unemployment rate—by November 2021. Employers must therefore prepare to face one of the biggest challenges during full employment: dealing with limited available labor.
Full employment forces employers to choose among the applications they receive, and the ideal candidate is not always available. Over time, this can lead to a degradation of the employer-employee relationship, which may take a turn that was certainly not anticipated during the hiring process.
It is often forgotten that just as an employee has the right to leave a job that no longer suits them, an employer can also terminate the employment. In both cases, the goal is to do things correctly to avoid trouble later on.
An unsatisfied employer can terminate employment for either disciplinary misconduct or administrative shortcomings. These two grounds for dismissal follow different rules.
A disciplinary violation is a voluntary decision by the employee to act incorrectly, while an administrative violation stems from a non-faulty behavior of the employee, who may be incapable or incompetent at work, but to whom the employer has no disciplinary reproach to make.
The law is clear: before dismissing an employee, the employer must attempt to correct the situation. In disciplinary matters, the employer must address the wrongful behavior progressively. This is referred to as “escalation of sanctions.” A verbal warning will be given first, followed by a written warning. After that, a first suspension may be imposed, then a longer suspension, and ultimately, dismissal.
In cases of administrative incompetence or performance insufficiency, there is no mention of punishment, and before terminating an employee, the employer must meet five requirements:
- The employee was aware of the company policies and expectations set by the employer;
- The employee’s deficiencies were pointed out;
- The employee received the necessary support to improve and meet their objectives;
- The employee was given a reasonable time to adjust; and
- The employee was warned of the risk of termination if no improvement was made.
It is crucial for the employer to determine from the outset whether the issue with their employee is disciplinary or administrative in nature, so that the correct corrective procedure can be applied before resorting to dismissal. The employer must also document the employee’s file, including warnings, disciplinary measures, or, in administrative cases, meeting notes and follow-ups with the employee, as well as the final warning of the risk of dismissal. This way, the employer can demonstrate the validity of the dismissal if the employee decides to file a complaint with the CNESST or lodge a grievance with their union.
Finally, the employer must intervene with the employee regarding any problem, whether disciplinary or administrative, at the moment it arises. Employers who choose to let several deficiencies accumulate before intervening may be criticized for not acting at the first opportunity. This could be interpreted as tolerance, and the misconduct will not be held against the employee, who will benefit from the presumption of tolerance.
Note: The use of the masculine gender has been adopted for ease of reading and is not intended to be discriminatory.
The information provided in this text does not constitute legal advice. An employer who is uncertain about the decision to dismiss an employee should seek advice beforehand to ensure compliance with laws and regulations.
- Results from the Quebec Labor Force Survey, seasonally adjusted data for June 2020, Institut de la statistique du Québec.
- Results from the Quebec Labor Force Survey, seasonally adjusted data for April 2020, Institut de la statistique du Québec.
- A derogation to this principle applies in cases of serious or gross misconduct, such as theft, fraud, or sexual harassment, where immediate dismissal could be warranted.
- Recognized by the Supreme Court of Canada in A.U.P.E. v. Lethbridge Community College, 2004 SCC 28.
- Commission des normes, de l’équité, de la santé et de la sécurité au travail.
Nathalie Aubé , Lawyer, translated from French to English
