Dismissal challenge: what are my rights in Canada?

And to understand it, our network’s lawyers explain in video the essentials of contesting your dismissal. Dismissal: what to do during the pre-dismissal interview Our experts are at your disposal to contest your dismissal and maximize your compensation.

How to contest a dismissal ?

A dismissal is a procedure that is initiated against an employee by his employer in order to terminate the contract binding them. The dismissal is a procedure enclosed in a strict legislation and favorable to the employees.

There is not one dismissal but a multitude of dismissals that can be implemented/ notified to you. A dismissal can be contested if it does not meet the legal, conventional and jurisprudential requirements.

The Conseil de prud ‘hommes is the competent court before which you must contest your dismissal in order to assert your rights. It is composed of both professional and lay judges. Representatives of employers and employees make up this court.

This court is competent to contest the dismissals of private sector employees. Since the entry into force of the Macron Ordinances of September 22, 2017, the challenge of a dismissal is locked in a strict time limit of one year from the date of notification of the breach of contract. This one-year limitation period is applicable to the challenge of any type of dismissal.

‍Beware, beyond this time limit, you will be barred from taking action!”Challenging the dismissal begins with the filing of a petition with the Conseil de prud’hommes.

This request consists of submitting a form explaining your demands and documents justifying these demands. Upon receipt of this request, the Labor Court will send you a summons to a conciliation and orientation hearing. You are strongly advised to be accompanied by a lawyer in order to maximize your chances of success, to allow you to benefit from a better compensation of your prejudices or to obtain a transactional agreement that is favorable to you in case of amicable negotiation.

Never forget that your employer will not hesitate for a moment to equip himself with the best lawyers to support him in his steps, and that it is in your interest to equip yourself with the same weapons.

‍Except in the hypotheses restrictively enumerated by the Labour Code, conciliation is a mandatory prerequisite to any dispute.

During this conciliation and orientation hearing, the prud’homaux advisors will try to find a common ground between the employer and the employee.

Two outcomes are then possible:
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– The conciliation is successful, the employer and the employee manage to come to an agreement during the conciliation and orientation hearing (for example a transaction is envisaged: the employee agrees to interrupt the procedure, in exchange for the payment of an indemnity to him). In this case a report is established and will be given to you in order to note the conciliation.
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– The conciliation is a failure, in this case, and depending on the Labor Court before which you are:

– Either the councillors will set a date for a pre-trial hearing. This hearing will allow the Labour Court to verify that the parties have communicated the documents and conclusions within the agreed time limits and conditions. Only when all the parties have communicated (if necessary after several pre-trial hearings), the Labour Court will set a date for a judgment hearing for the pleadings.

– Or the councillors will directly set a schedule for the communication of exhibits and conclusions to each party and a date for the judgment hearing during which the case will be pleaded. During the judgment hearing, the Labor Court hears the pleadings of each party.

At the end of the debates, it sets a date for the deliberation.
The parties are then notified of the judgment.

Here again, two outcomes are possible:
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– The employer and the employee do not contest the judgment. It is then possible to request a certificate of no appeal, but this is by no means mandatory. The litigation ends.
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– The employer and/or employee contest the judgment,

– If the dispute is less than $4,000, the Conseil de prud’hommes has ruled as a last resort, i.e. under the sole control of the Cour de cassation. The appeal of the judgment is limited to a period of two months after the notification of the judgment to the parties and must be made before the Court of Cassation. It is mandatory to be accompanied by a lawyer before the Court of Cassation in order to assert your rights.

– If the litigation is superior to $4 000, the appeal of the judgment is locked in a delay of one month after the notification of the judgment to the parties and must be done before the Court of Appeal. It may take one to two years for the case to be argued before the Court of Appeal.

It is mandatory to be assisted by a lawyer or a union representative to assert your rights.

Types of dismissal

Dismissal is the procedure used to terminate an employment contract of indefinite duration.

The dismissal is necessarily initiated by the employer.

To be valid, the dismissal must be based on a real AND serious reason.

Regarding the real nature of the reason for the dismissal, it must be based on an objective cause, i.e. it must be based on facts.

The seriousness of the dismissal is based on the fact that the situation represents a certain degree of seriousness that does not allow the employee to remain in the company.

If the referral to the Labor Court can be made by the individual alone, hiring a lawyer to assist you in your efforts is a more than wise choice!

The typology of dismissals that can be opposed to you is as follows:
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– Dismissal for personal reasons: The dismissal for personal reasons is possible for disciplinary reasons (in case of fault of the employee) or non-disciplinary reasons (in case of professional insufficiency, physical inaptitude, refusal of a modification of the work contract…).

In the event of dismissal for disciplinary reasons, the misconduct may, depending on its seriousness, be qualified as simple, serious or serious.

The dismissal procedure to be followed by the employer is as follows:

– Summoning the employee to a prior interview;
– Respecting a minimum period of 5 working days between the summons and the interview;
– Prior interview during which the employee may be assisted. During this interview, the employer must inform the employee of the grievances against him/her;
– Respect of a minimum period of two days between the preliminary interview and the notification of the dismissal;
– Notification of the dismissal: sending the employee his/her dismissal letter. The lawyer can help you prepare for the preliminary interview but cannot accompany you. The lawyer can also help you prepare a letter contesting the reasons for the dismissal contained in the letter of dismissal.

– Dismissal for economic reasons: Unlike dismissal for personal reasons, dismissal for economic reasons does not originate from the employee.

The economic reason is defined as a reason not inherent to the employee’s person, resulting from the elimination or transformation of a job or a modification, refused by the employee, of an essential element of the employment contract, consecutive to economic difficulties, technological changes, the cessation of the company’s activity or a reorganization of the company necessary to safeguard its competitiveness

In the context of an economic dismissal, the employer may redeploy the employee(s) subject to this procedure.

It is even a right that is granted to this/these employee(s). The employer must consult the staff representatives and the procedure varies according to the number of employees in the company and the number of employees subject to redundancy for economic reasons.

Which lawyer for a dismissal?

If your dismissal does not seem at first sight to be based on a real and serious cause as defined above, it is advisable, and even necessary, to seek the assistance of a lawyer specialized in labor law in order to defend your interests.

If you have any doubts about the legality of your dismissal, a lawyer specialized in labor law will be able to analyze the reasons used against you and justifying the dismissal in order to assess their veracity. The lawyer specialized in labor law, after analyzing these reasons, will be able to inform you on the opportunity to act against your employer.

The role of the lawyer is to inform you but also and above all to support you and to advise you on the steps to take to assert your rights. In the event of a dispute with your employer, the lawyer will most likely advise you to go to the Conseil de prud’hommes.

The lawyer’s role is to accompany you, starting with the conciliation phase. He or she will also be at your side in the constitution of your file and in the gathering of evidence to be presented to your employer. The lawyer will plead before the Labor Court in order to defend your interests.

Before your first meeting with a lawyer specialized in labor law, it is important to prepare yourself and also to prepare a certain number of supporting documents. Be prepared to clearly state the elements relating to the situation, without getting carried away by your feelings but by explaining the situation in as much detail as possible.

Do not hesitate to prepare a list of questions that you feel are important to ask the lawyer.

The employment lawyer is THE legal professional who will be able to answer your questions correctly, unlike any forum you may have ventured into. Bring all the supporting documents to your appointment so that the lawyer can have an informed opinion on your situation and support you with all the facts.

The cost of the lawyer’s services differs according to the procedure initiated.

If the lawyer provides a simple consultation, it will be billed at around 250 HT/hour.

If the lawyer accompanies you in the litigation, the cost will necessarily be different. A fixed price will certainly be proposed by your lawyer, the amount of this fixed price will be based on the complexity of your case, the reasons given and the nature of the dispute.

Do not forget that the price of a lawyer can be substantial, but it is only equalled by his work and his capacity to accompany you.

The criterion to be taken into consideration is especially that of the stake of your file, which is to be put in parallel with the funds to be advanced.