Has your employer penalized you? Or worse, have you been fired? You might feel you were treated very unfairly, but before filing a complaint against your employer or just giving up under all the stress, you need to know how the law protects you.
This article discusses the rules of the Act respecting labour standards. Some people aren’t covered by this law.
For example, unpaid trainees aren’t covered by the Act respecting labour standards. Paid trainees are covered by certain aspects of this law, but not all of them. That being said, if you’re a trainee, you might still have certain rights when it comes to being fired or receiving penalties. To find out more about your rights as a trainee, contact the website of the Commission des normes, de l’équite, de la santé et de la sécurité du travail (CNESST or labour standards, pay equity and workplace health and safety board).
Recognizing an illegal situation
Employers generally have the right to fire employees and impose penalties, if there’s a good reason. In Quebec, some reasons for firing or penalizing employees are illegal. Even if you’ve just been hired, the rules of the Act respecting labour standards still apply.
There are several “prohibited” (illegal) reasons for penalizing or firing someone. Some of the situations described below might sound familiar.
Being fired after discussing maternity leave
Justine is pregnant. She informed her employer, so that they could discuss the dates of her maternity leave. A few days later, Justine was fired. Justine has always had good evaluations. She suspects she was fired because she’s pregnant.
The problem: It’s illegal to fire an employee because she’s pregnant.
Demoted for asking for the compensation provided by law
Luc works in a grocery store. His employer asked him to work on July 1st, Canada Day. Luc asked for the compensation to which he was entitled for working on a public holiday. The employer became irritated because Luc dared to ask for this. The next day, Luc was demoted to the position of store clerk.
The problem: It’s illegal to penalize an employee for exercising a right protected under the Act respecting labour standards.
Fewer hours for refusing to do overtime
Carlos has two young children. His employer asked him to work later than usual. Carlos tried to find someone to pick up his kids at daycare but didn’t have any luck. Therefore, he couldn’t do the overtime. Since then, his employer has cut his hours significantly.
The problem: Employees can refuse to do overtime if they have parental responsibilities. It’s illegal to penalize them for this reason.
For more examples of prohibited practices (illegal reasons for firing or penalizing an employee), visit the CNESST’s website.
If you file a complaint about being fired or penalized for a prohibited reason (for example you are fired while you are pregnant) it will be up to your employer to prove you weren’t fired or penalized for that reason.
45 days to file a complaint
You usually have 45 days from the time you were fired or penalized to file a complaint with the CNESST.
The CNESST will begin by determining whether your complaint is admissible.
If your complaint is admissible, the CNESST will contact you and your employer. A mediation service will be offered if you and your employer are interested in one. If mediation fails, or if you don’t go to mediation, the CNESST will refer your complaint to the Administrative Labour Tribunal, which will hear your case. You must prove that you’re an employee covered by the Act respecting labour standards and that you fall under one of the situations described above. Then your employer will have to prove that the firing or penalty was legal.
If your complaint is inadmissible, the CNESST will let you know in writing and explain the reasons. You then have 30 days to apply to the CNESST’s Director General of Legal Affairs for a review of the decision.
These are some of the things you can ask the Tribunal:
- Order your employer to give you back your job.
- Order your employer to pay you compensation.
- Order your employer to cancel the penalties, stop discriminating against you or stop any retaliation against you.
The decision of the Administrative Labour Tribunal is usually final and without appeal. If either you or your employer is not satisfied with the decision, it is possible to contest it in Superior Court. However, the Court will only intervene in exceptional circumstances. If you are considering this option, you should consult a lawyer for more information.
If the employer refuses to respect the Tribunal’s decision, you can file a copy of the decision with the office of the Superior Court in the district where your employer is located. You can then oblige your employer to respect the decision.
Additional protection after two years
Have you been working for your employer for two years or more? Like other employees, you’re protected against the prohibited practices. Also, your employer can only fire you for a “good and sufficient cause”, such as dishonesty, incompetence, insubordination, etc. If you’re fired for being late to work just once and you’re not in the habit of being late, you should be able to contest this. Contact the CNESST to learn about the complaints process in this type of situation.