Me Marie-Michelle Savard
Me Savard concentre sa pratique en litige civil, en droit du travail et de l’emploi ainsi qu'en droit administratif. Elle a également des habiletés en matière de droit de l'environnement et d'expropriation. Elle a conséquemment plaidé devant les instances judiciaires et administratives à de nombreuses occasions, devenant par le fait même une oratrice passionnée démontrant un fort sens de la persuasion.
Voir le profilPrendre rendez-vousSerious fault allows an employer to dismiss an employee without notice. Our labor law attorneys in Quebec City and Lévis will define the concept and explain the situations in which an employer may consider that an employee’s conduct characterized by serious fault.
Serious fault: the principle
The Quebec Labor Act (Loi sur les normes du travail) provides that an employer is required give an employee a notice of termination before dismissing them, if the employee has worked within the company, without interruption, for at least three consecutive months.
However, according to Article 82.1(3) of the abovementioned Act, an employer may dismiss an employee without notice if their conduct is characterized by serious fault.
Serious fault: definition
Case-law defines serious fault justifying a dismissal without notice as a serious breach that makes it essential to immediately terminate the employment relationship.
Serious fault represents a serious breach that cannot be justified and results in the bond of trust between the employer and the employee being severed.
A single or reiterated behavior
Serious fault generally refers to a single breach characterized by significant severity. However, according to case-law, it can also be the case of a prima facie non-serious breach, which becomes serious as the conduct is intentional or reiterated over time.
In other words, serious fault may be an isolated event of such severity that it warrants dismissal without notice, or it may be a conduct characterized by severity because of its reiterated nature and which, despite warnings received and sanctions imposed, does not cease.
In the latter case, in the absence of sanctions, reiterated actions would generally not be considered as serious fault.
A subjective rather than objective analysis
The seriousness of the employee’s fault is assessed from a subjective standpoint on a case-by-case basis, and not from an objective standpoint.
Several factors must be considered in the subjective analysis concerning the seriousness of the fault: the employee’s intent underlying the fault, the likely consequences of the breach, the employee’s disciplinary record, etc.
Serious fault: examples
As the provision envisages a subjective assessment concerning the context and the seriousness of the fault, let us look at some examples of breaches that allow the employer to dismiss an employee without notice.
Case-law generally consider the following breaches as serious fault under Article 82.1(3) of the Quebec Labor Act (Loi sur les normes du travail):
- Theft or fraud committed by the employee in the performance of their duties;
- Personal use of employer property made available in breach of internal policies;
- Taking of employer documents;
- Theft, transfer or solicitation of the employer’s customers in favor of a competitor;
- Racial statements against staff members;
- Reiterated absence without justification;
- Serious insubordination;
- Attack against the dignity of colleagues;
- Misrepresentation at the time of the job interview;
- Non-compliance with working hours (known as “vol de temps“, or “time theft”);
- Refusal to comply with the employer’s instructions;
- Breach of the duty of loyalty to the employer.
Burden of proof
The employer is required to justify the immediate termination of employment without notice.
In case of dismissal without notice as a consequence of a series of reiterated breaches, the employer must prove that the employee’s disciplinary record shows progressive sanctions.
Conversely, in case of a single breach, the employer must show that dismissal without notice is justified in light of the circumstances, and must prove serious fault. The principle whereby sanctions must be progressive does not apply if the employee has committed an isolated action characterized by serious fault.
Preponderance of evidence
The employer’s burden of proof is that of “preponderance of the evidence”. Therefore, the employer must establish that it is far more likely that the employee acted in serious fault rather than they did not, according to the 50%+1 ratio.
The employer must establish that the fault is so serious as to warrant dismissal without notice. Depending on the case, it may be appropriate to conduct an investigation in order to demonstrate that it was the employee themselves who committed the alleged fault.
Serious reason in labor law
Whereas the Quebec Labor Act (Loi sur les normes du travail) governs immediate dismissal in the event of an employee’s serious fault, Article 2094 of the Quebec Civil Code provides for a similar scheme, whereby the employer may terminate the employment contract, without notice, for serious reason.
Serious reason must be of such a nature as to break the bond of trust between the employer and the employee and represent, from an objective standpoint, an action that cannot be tolerated, thus justifying immediate dismissal.
The following are examples that may constitute serious reason for dismissal without notice:
- Insubordination;
- Lack of loyalty;
- Insufficient performance;
- Repeated errors despite several warnings.
Therefore, the notion of “serious reason” in the Quebec Civil Code bears a degree of similarity to the notion of “serious fault” in the Quebec Labor Act (Loi sur les normes du travail).
However, the notion of “serious reason” is less restrictive than that of “serious fault”. For example, case-law has held that inadequate performance may constitute a serious reason, but it does not constitute serious fault allowing the employer to dismiss without notice.
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If an employee’s fault is sufficiently serious, the employer may be released from its obligation to give notice of termination. Therefore, in order to avoid recourse, it is imperative to determine whether the reasons for the dismissal constitute serious fault justifying the unilateral termination of the employment contract without notice.
In order to facilitate this decision, it is appropriate to consult a labor law attorney to evaluate the context and the fault of the employee. The labor law attorneys at Verreau Dufresne Avocats may advise and assist you.
Note: The above information above is general in nature and does not constitute legal advice. To obtain advice on your specific legal situation, please do not hesitate to contact one of our attorneys in Quebec City, Lévis or Montmagny.
Note : Les informations présentées ci-dessus sont d'ordre général et ne constituent pas des conseils juridiques. Afin d'obtenir un avis sur votre situation juridique particulière, n'hésitez pas à communiquer avec l’un de nos avocats de Québec, Lévis ou Montmagny.
