Employment Lawyers in Montreal and the West Island
WRONGFUL DISMISSAL & COMPENSATION
If you have been wrongfully dismissed, you are entitled to compensation from your former employer.
As a general rule, an employer can terminate an employee. However, employees with two years of service are entitled to reinstatement to their employment if the employer does not have just cause for the termination of the employment.
Employees who are terminated, must be provided with reasonable prior notice before being terminated, or, compensation in lieu of prior notice (severance). Under the Labour Standards Act, (LSA) minimum periods for prior notice are stipulated. For example, an employee with 10 years of continuous service is entitled to 8 weeks of prior notice.
Under article 2091 of the Civil Code of Quebec, notice of termination must be reasonable. A reasonable notice, will depend on the duration of your employment, your age and title, among other factors. The Courts, in their application of article 2091 of the Civil Code, are generous when defining what duration of notice an employer must give an employee upon termination.
If you find yourself in one of these situations, consult with an employment lawyer because your complaint must be filed within specific time limitations. Our lawyers have extensive experience with employment law in Montreal, the West Island and Pointe-Claire. They will defend your rights and work diligently to reach effective and efficient results.
ADVICE BEFORE TERMINATION
There are times at work when you sense matters are not going well. Criticism increases, attitudes and performance reviews change for the worse, your superiors become uncharacteristically impatient and demanding. This is very stressful. Consult with an employment law lawyer. You can be informed of your rights and guided on how to protect them. At times, the conduct of your superior, or another employee, can be so serious that it meets the threshold of constructive dismissal or psychological harassment in the work place.
Constructive dismissal will occur when an employee resigns because they have been indirectly forced to. For example, the employer decides unilaterally to make substantial changes to an employee’s conditions of employment, such as changes to salary, status, prestige or responsibilities. If the employee does not agree to these changes, the employee can consider the contract of employment (whether in writing or verbal) as terminated for breach and can leave. In this case, the employee has not resigned, rather, they have been dismissed (constructively) and the employee is entitled to compensation for unjust dismissal and damages where appropriate.
In other words, given all the circumstances, the substantial unilateral changes by the employer to an employee’s essential conditions of employment constitutes the dismissal of the employee because the employer ceased to meet its obligations. Since the employer has not formally dismissed the employee, this is referred to as constructive dismissal.
PSYCHOLOGICAL HARASSMENT IN THE WORK PLACE
Psychological harassment in the work place is prohibited. You have a statutory right to work in an environment that is free from psychological harassment. Employers are obligated to prevent psychological harassment. They are also obligated to resolve it when it occurs in the workplace.
Psychological harassment is behavior that is abusive, humiliating, or, offensive. The behavior must be hostile or unwanted by the employee. It must also affect the dignity of the employee and create a harmful work environment. The unwanted behavior must occur repeatedly. Although, a serious single incident can also be sufficient.
A clause in a contract of employment that prohibits the former employee from being hired by, or becoming engaged in, a business that competes with the business of the former employer is referred to as a “non-competition covenant”, “restrictive covenant”, or “non-competition clause”.
Generally, non-compete clauses are considered contrary to public policy because they constitute a restraint of trade. Consistent case law has established that non-compete clauses will not be enforceable, unless, the employer can establish that the restriction to compete is reasonable:
- and goes no further than is necessary to protect the employer’s legitimate business interest;
- in terms of the duration or timeframe, the employee is prohibited from competing;
- as to the geographic scope or area in which the former employee is prohibited from competing;
- as to the nature of the activity it prohibits
In summary, a non-competition clause cannot unreasonably prohibit a former employee from obtaining new employment.