Me Marie-Michelle Savard
A partner at Verreau Dufresne Avocats, Marie-Michelle Savard focuses her practice on labour law, representing businesses and individuals with rigour and a personalized approach. With litigation experience before several provincial and federal tribunals and courts, she stands out for her analytical mind, rooted in her scientific training, and her ability to find practical solutions to complex issues.
View profileBook an appointmentSerious misconduct allows an employer to dismiss an employee without notice. Our labour lawyers in Québec City and Lévis define this concept and explain when an employer can consider that an employee has committed serious misconduct.
Serious misconduct : the principle
In Quebec, the Act respecting labour standards provides that an employer must give an employee written notice of termination of employment before dismissing them if the employee has at least three months of uninterrupted service.
However, under section 82.1 (3) of this Act, an employer can dismiss an employee without any notice if the employee has committed serious misconduct (a “serious fault”).
Serious misconduct : definition
The courts define serious misconduct that justifies dismissal without notice as a grave and serious breach that makes it essential to end the employment relationship immediately.
Serious misconduct is a serious violation that cannot be excused, and it breaks the bond of trust between the employer and the employee.
A single incident or repeated behaviour
Serious misconduct generally refers to a single breach that is very serious. However, the courts have held that it can also be a breach that does not seem serious at first, but becomes serious because it was intentional or because it is repeated over time.
In other words, serious misconduct can be an isolated incident so serious that it justifies dismissal without notice, or behaviour that meets the seriousness test because it is repeated and continues despite warnings and sanctions.
In the latter case, repeated acts will generally not amount to serious misconduct if no sanctions were imposed.
A subjective, not objective, analysis
The seriousness of the employee’s misconduct is assessed subjectively, based on each situation, and not objectively.
Several factors must be considered in the subjective analysis of the seriousness of the misconduct: the employee’s intent, the likely consequences of the breach, the wrongful conduct, the employee’s disciplinary record, etc.
Serious misconduct : examples
Since classifying the misconduct depends on a subjective assessment of the context and of how serious the misconduct is, here are some examples of violations that allow an employer to terminate an employee’s employment without notice.
The courts generally consider that the following breaches constitute serious misconduct within the meaning of section 82.1 (3) of the Act respecting labour standards :
- Theft or fraud committed by the employee in the performance of their duties;
- Personal use of the employer’s property made available to the employee, in breach of an internal policy on the subject;
- Taking the employer’s documents;
- Stealing, transferring or soliciting the employer’s clients for a competitor;
- Making racist remarks about staff members;
- Repeated unjustified absences;
- Serious insubordination;
- Undermining the dignity of co-workers;
- False statements during the hiring interview;
- Time theft;
- Refusal to follow the employer’s instructions;
- Breach of the duty of loyalty to the employer.
Burden of proof
It is up to the employer to justify ending the employment relationship immediately without notice.
When a dismissal without notice results from a series of repeated breaches, the employer must prove that sanctions were applied progressively, as shown in the employee’s disciplinary record.
Conversely, if the misconduct is a single breach, the employer must show that dismissal without notice is justified in the circumstances and must prove that serious misconduct occurred. The principle of progressive discipline does not apply if the employee committed an isolated act of serious misconduct.
The balance of probabilities
The employer’s burden of proof is the “ balance of probabilities ” (preponderance of evidence). This means the employer must show that it is more likely than not that the employee committed serious misconduct, on a 50 % + 1 basis.
The employer must establish that the misconduct is serious enough to justify dismissal without notice. Depending on the case, it may be useful to conduct an investigation to show that the employee actually committed the misconduct alleged.
Serious reason in labour law
Alongside the Act respecting labour standards, which governs immediate dismissal for an employee’s serious misconduct, article 2094 of the Civil Code of Québec provides a similar regime: the employer can resiliate the contract of employment, without notice, for a serious reason.
A serious reason must be such that it breaks the bond of trust between the employer and the employee and must, objectively, be conduct that cannot be tolerated, which justifies immediate dismissal.
Here are examples that may constitute a serious reason for dismissal without notice :
- Insubordination;
- Lack of loyalty;
- Inadequate performance;
- Repeated errors despite several warnings.
As a result, the concept of “ serious reason ” in the Civil Code of Québec is somewhat similar to the concept of “ serious misconduct ” in the Act respecting labour standards.
However, the concept of “ serious reason ” is less restrictive than that of “ serious misconduct ”. For example, the courts have held that inadequate performance can be a serious reason, without being serious misconduct that allows the employer to dismiss an employee without notice.
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When an employee’s misconduct is serious enough, the employer may be released from the obligation to give notice of termination. To avoid legal action, it is therefore crucial to determine whether the reasons for the dismissal amount to serious misconduct that justifies terminating the contract of employment unilaterally and without notice.
To help you make this decision, it is a good idea to consult a labour lawyer to assess the context and the misconduct alleged against the employee. The labour lawyers at Verreau Dufresne Avocats can advise and assist you.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
