Prohibited practices (Recourse provided by sections 122, and following of the Act Respecting Labour Standards)

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1 Prohibited practices (Recourse provided by sections 122, and following of the Act Respecting Labour Standards) Have you been dismissed, suspended, transferred, or subjected to discriminatory measures, reprisals, or other sanctions by your employer? In certain circonstances, the Act Respecting Labour Standards (also called in French the Loi sur les normes du travail) may allow you to contest these measures. 1. What is a prohibited practice? The Act Respecting Labour Standards (ALS) limits, although only slightly, the employer s managerial rights by prohibiting certain practices deemed to be unacceptable in the workplace; these are referred as prohibited practices. Regardless of how long you have been working for your employer, he cannot dismiss, suspend, transfer, or subject you to discriminatory measures, reprisals, or other sanctions for the following reasons (section 122 ALS): You have exercised a right recognized by the ALS (for example, insisting that your overtime be paid time and a half, taking steps towards ending psychological harassment at work, etc.) ; You had to take leave from work for medical reasons or you were the victim of a criminal act (this protection is only provided for employees who have at least 3 months of uninterrupted service) ; You are pregnant ; You have refused to work over and above your regular hours because your presence is required either for the care, health, or education of your child (or the child of your spouse), or because of the state of health of your spouse, mother, father, sister, brother, or grandparent. (Note: it is important, however, that you make a reasonable effort to limit your absence as much as possible) ; Your employer tries to avoid the application of the ALS; An investigation is undertaken by the Commission des normes du travail (CNT) at your workplace ; You have provided the CNT with information regarding the application of the ALS or ou have served as a witness in a hearing related to the ALS; Your pay has been seized or may be seized ; You owe alimony or support payments that are governed by the Act facilitating payment of alimentary support (Loi facilitant le paiement des pensions alimentaires). In addition, it is prohibited that your employeur dismiss, suspend, transfer, or subject you to discriminatory measures, reprisals, or other sanctions because: You have reached the age of retirement established in a pension plan, a collective agreement, a decree, or the customary practice of a company (section ALS). (Note: This protection is inapplicable to firemen or members of the Sûreté du Québec) ; You have exerciced a right in accordance to section 335 of the Loi électorale du Québec (Note: these rights pertain to your absence from work in order to exercice your right to vote during provincial elections). Au bas de l échelle

2 2. How do I file a complaint against a prohibited practice? Where do I file a complaint? If you have been subjected to a prohibited practice, you can file a complaint with the Commission des normes du travail (CNT), provided you satisfy certain conditions (see below). The CNT is the governemental agency responsible for the application of the Loi sur les normes du travail; it informs both employees and employers of their rights and obligations and it accepts complaints filed by employees. What are the conditions under which I can file a complaint with the CNT? To contest a prohibited practice you must Be a salary worker ; Be or have been in one of the situations enumerated in the above section 1 (for example, being pregnant or having exercised a right recognized by the ALS) ; Have been subjected to one of the measures enumerated in sections 122 and of the ALS (for example, having been dismissed or suspended) ; File your complaint within 45 days (or 90 days in the case of a forced retirement) of the moment you became aware of the measure your employer has taken against you. You will have to prove a temporal link between the prohibited practice and the sanction taken against you by your employer (for example, you have been dismissed 1 week after telling your employer that you are pregnant). The burden of proof If you satisfy the above conditions, there is then a presumption that applies in your favor : this means that the commissioner evaluating your case will first presume that the employer subjected you to the measure at hand for reasons prohibited by the ALS. Your employer will then have to prove otherwise: he will have to prove that the measure was imposed for a serious reason. For example, the employer will have to prove that he did not dismiss an employee because she was pregnant, but rather that he dismissed her because she kept coming in late, despite the numerous verbal and written warnings she had received on this account. In cases of maternity, paternity, or parental leave, the presumption in favor of the employee lasts for a period of 20 weeks after his or her return to work (section ALS). How do I file a complaint? You can file a complaint at the Commission des normes du travail by phone ( ), online ( or by mailing in a written complaint, using a form designed for this purpose. The CNT and Au bas de l échelle can provide you with this form upon request. If I do not meet the conditions necessary to file a complaint against a prohibited practice, does this mean that I cannot contest the measures I was subjected to? Not necessarily. Labour law is divided into many different laws, many of which offer protection Au bas de l échelle

3 against such measures. Therefore, there may be other legal actions available to you. For example, if your boss has fired you or if he is forcing you to resign, you could file a complaint for an unfair dismissal with the CNT, providing you have at least 2 years of uninterrupted service. Please contact Au bas de l échelle for more information. It is important to act fast because the delays in which you must file your complaint are often very short! Is it possible to file numerous complaints to contest the same measure? You want to know more about unfair dismissal? Ask for our information guide! Yes, it is not only possible, but it is also recommended. The more complaints you file, the more leverage you will have during negotiations which, in turn, may help you get a better compensatory damage. For example, the Canadian Charter of Rights and Freedoms also prohibits discrimination or harassment based on age, pregnancy, handicap (illness), etc. If you have been subjected to reprisals because you are pregnant, because you have missed work due to your illness, because you have reached the age of retirement, etc., you could file a complaint with the Commission des droits de la personne et des droits de la jeunesse in addition to the complaint filed with the Commission des normes du travail. Contact Au bas de l'échelle as soon as possible to find out which complaints you can file. It is important to act quickly because the delays within which you must file your complaints are often quite short! Helpful tip Are you hesitating to file a complaint because you still work for your employer (in the case of a suspension or transfer, for example) and are fearful of his reaction? Keep in mind that if your employer sanctions you for having filed a complaint, you would be able to file an additional complaint for prohibited practice since you exercised a right recognized by the ALS when you filed your original complaint for a prohibited practice (section 122(1) ALS). In this sense, filing a written complaint doubles your protection! 3. What are the steps by which a complaint is treated? The Commission des normes du travail (CNT) begins with a preliminary analysis as to the acceptability of the complaint; that is to say, they make sure you satisfy the conditions for filing a complaint (see section 2). If your complaint is acceptable, the CNT will then offer a session of mediation between you and your employer in an attempt to reach a satisfactory settlement for both parties. This step is done on a purely voluntary basis but we strongly recommend you try it. If no settlement is reached during You want to know more about mediation? Ask for our information guide! mediation, your file is transferred to the Labour Relations Board, hereafter designated as the Commission des relations du travail (CRT). At this point, your file is handed over to a lawyer from the CNT, who will represent you free of charge. Before the hearing takes place, the CRT offers a second chance to reach a settlement (known as conciliation ), during which your lawyer will be present. If this effort fails as well, the hearing takes place and the commissioner will decide whether or not there was in fact a prohibited practice. It is important to note that if the CNT decides that your complaint is inadmissable, you can either (A) Au bas de l échelle

4 ask for a revision or (B) ask that your file be transferred directly to the CRT. If you chose option B, know that you will not be entitled to free representation by a lawyer from the CNT, which could be the case if the CNT changes its decision as to the admissability of your claim (option A). 4. What can be obtained by filing a complaint against a prohibited practice? The Act respecting Labour Standards (Loi sur les normes du travail) enumerates the compensations that a commissioner can grant to the victim of a prohibited practice. The commissioner can order that your employer: Reinstate you into your position with the same conditions and benefits; Cancel a sanction or put an end to discriminatory measures or reprisals; Pay you an indemnity equivalent to the salary and other advantages (vacation pay, statutory holidays, tips, bonuses, commission, car benefits, pension plan, payable sick days, insurance coverage, etc.) lost from the time you have been subjected to the prohibited practice. You could use these possible compensations as a guide to formulate the requests you will present to your employer during mediation or conciliation. Au bas de l échelle

5 You do not want to be reinstated? Here are some things to consider before renouncing your right to reintegration. Reinstatement It should be noted that the CRT does not have the power to grant an indemnity in substitute of a reinstatement. However, you are free to negotiate an indemnity of this nature during the mediation or conciliation process. This is a delicate process, since you do not want to lose your right to a reimbursement for lost wages and benefits. Renouncing your right to reintegration can also have an impact on your eligibility for unemployment insurance or on the admissibility of other possible pursuits (for example, a worker s claim from the CSST). Inform yourself beforehand with specialized support groups or with a lawyer in order to avoid any negative consequences as a result of your decision. 5. Some practical advice File your complaint as soon as possible. This will ensure that you have exercised your right within the 45-day delay. In addition, it is usually easier to file the complaint when the events are still fresh in your memory. Write up an account of the events that lead to your dismissal, detailing the time and place of the events and listing the possible witnesses. You want to know Find out if your employer owes you money: unpaid overtime, more about pecuniary indemnity for notice, vacation pay (usually referred to as your complaints? Ask for 4% or 6% ), etc. If your employer does owe you money, you our information guide! have one year to file a pecuniary complaint with the CNT. Even if you have been dismissed or have been forced to hand in your resignation, you may nevertheless be eligible for unemployment insurance. Contact a specialized support group to get advice tailored to your situation before filing a request for unemployment insurance. If your employer wants you to sign a document when you are dismissed, ask for some time to think about it, regardless of the document. In addition, ask for a copy of the document to be signed and consult a lawyer. Be especially skeptical if your employer insists that you sign the document immediately or if he refuses to give you a copy. Your employer is obliged to give you a certificate of employment, provided you ask for it. This certificate should detail the nature of your job and the period during which you occupied the position, as well as the company s coordinates. If the employer refuses to give you this certificate, contact the CNT and file an administrative complaint. It is important to note that your employer is not obliged to give you a letter of recommendation describing his appreciation of your conduct or the quality of your work. If you have been laid-off, try to stay in contact with some colleagues from work in order to know if your employer has hired someone to replace you, in which case your lay-off may be a masked dismissal (also called constructive dismissal ). You want to know more about constructive dismissals? Ask for our information guide! Know that you have the obligation to minimize your losses after your dismissal by actively looking for a new job (and keeping the proof thereof); otherwise, the commissioner will substantially reduce the indemnity you receive. Au bas de l échelle

6 Check to see if you can file another complaint with the CNT, the Commission des droits de la personne et de la jeunesse (CDPDJ) or the Commission de la santé et de la sécurité du travail (CSST). The more complaints you file, the more leverage you can have during negotiations. Call Au bas de l'échelle for more information! Au bas de l échelle is a defense group for non-unionized workers. We offer an information service pertaining to your rights in the workplace and we fight to improve working conditions for those who find themselves at the bottom of the ladder! If you share our aspirations and wish to give us support, you can make a charitable donation or become a member of our organisation. Contact us at or visit our website ( to find out more. Last updated: March 18, 2011 Au bas de l échelle