This document summarizes recourses available for senior managerial personnel who have been dismissed in Quebec. It discusses that senior managerial personnel are excluded from protections against unjust dismissal under labor laws and must pursue civil claims. Their recourses include claiming reasonable notice of termination or compensation through a civil lawsuit, subject to a three year limitation period. The document also outlines factors considered in determining if someone qualifies as senior managerial personnel.

1. Senior managerial
personnel dismissal

3. Glossary
Recourse in case of a dismissal not made for good
and sufficient cause
Senior managerial personnel
Recourse offer to senior managerial personnel
about dismissal

5. I – Recourse in case of a dismissal
not made for good and sufficient
cause

6. The recourses in case of dismissal not made for good and
sufficient cause is a job protection measure.
This recourses reinforces the measures of the Civil Code
dealing with contract of employment.
In some situations, its provides for the possibility of
reinstating the employee in his job.

7. An employee who has worked for the same
enterprise for 2 years or more and who believes
that he was dismissed without good and sufficient
cause may file a complaint with the Commission
des normes du travail.

8. DEFINITIONS :

9. Dismissal : permanent severing of the employment relationship
decided by the employer. The causes that an employer may invoke
include:
• Misconduct
• Bad attitude
• Lack of skills
• Insufficient performance
• Incompetence.
A dismissal implies that the employer still needs
someone to do the work, but no longer wants you to be
the person doing it.

10. Constructive dismissal: indirect means whereby an employer
dismisses an employee by presenting it as a layoff or a permanent
layoff.
The employee may also be forced to resign as the result of
substantial and unjustified changes in his conditions of
employment or through various forms of harassment.

11. Double sanction: An employer cannot reprimand an employee
twice for the same mistake.
For example, if the employer suspends an employee for an
inappropriate action that he committed, the employer cannot
decide afterwards to dismiss the employee for the same reasons.

12. TIME PERIOD :
The action in case of dismissal not made for good
and sufficient cause must be exercised no later than
45 days after the dismissal.

13. EXCEPTIONS :
• The standard does not apply to an employee who benefits
from an equivalent action under another law or a collective
agreement.
• The law does not apply on some employees as :
– Persons responsible to keep in a home, child, a sick, a disabled or
elderly person if their employer doesn’t pursuit a profit ;
– The individual voluntarily incorporated by incorporation to provide
services;
– Senior managerial personnel ;
– An employee subject to the Act respecting Labour Relations,
Vocational Training, and Workforce Management in the Construction
Industry.

15. II – SENIOR MANAGERIAL PERSONNEL

16. The senior
managerial on the
personnel on the applicable jurisdiction on the verdict of
qualification to a law which will deals the recourses
employee have a with the case
triple impact :

17. The Act respecting Labour Standards excluded senior
managerial personnel, except some kind of standards.
Example: the standards dealing with public order (c. IV, div. IX, s. 93
and 97 LNT)

18. On a other hand, middle and inferior senior are subject to the Act
respecting Labour Standards, and this, also for the notice of
termination of employment or layoff and compensation to this
effect.
However, increase overtimes do not apply to this senior (s. 54,
paragr. 3° LNT).

19. Senior managerial personnel is totally excluded from all
recourses provided for a dismissal “not made for a good and
sufficient cause”.
This implies that the senior managerial personnel may take civil
action to defend his interests, if he disagrees with the decision of
the employer and he must bear the legal cost to this effect, if
necessary.

20. Unfortunately, the law doesn’t provide definition of “senior
managerial personnel”.
However, case law elaborates several factors to determinate if a
person are or not a senior managerial personnel.
Generally, these factors allow the analysis of this notion “senior
managerial personnel” but they aren’t the only available or
determining factors.

21. THE SENIOR MANAGERIAL PERSONNEL QUALIFICATION:
The only fact that a person is qualified senior managerial
personnel aren’t enough to establish that the person necessarily
is; this fact can at most be use as a evidence to establish the status
of this person.
It possible that there is no senior managerial personnel in the
firm.
This factor become applicable for small firm which the direction
function is exercised by the owner himself or the main shareholder.

22. Some criteria to define the senior managerial personnel
1. The hierarchic level in the organizational structure
Senior managerial personnel must be a part of the high
management: the owner, the president of the board of directors
or the president.
It is important to look on the size of the firm in the criteria
evaluation.

23. 2. The level of decision
Senior managerial personnel contribute to the preparation of the
main directions of the firm, the major decisions concerning the
firm.

24. 3. The level of autonomy
Senior managerial personnel have a great autonomy and an
important decisional power.

25. 4. Personnel management
Senior managerial personnel manage senior staff.
He must has an important role to play in personnel management
concerning the power to bind the firm with third-party.

26. 5. Working conditions
Senior managerial personnel are part of best paid employees of
the firm.

27. Practical application of the criteria
1. Person who is directly accountable to the Board of Directors or
Director-general
In big firm which operate in several establishments, we can
considerate as a senior managerial personnel, person who directs
one of the big firm’s establishments. But, other “lower” senior
level have to exist to take control of the leadership of one part of
the firm.
However, we have to exclude local small branch manager, for
example a shop, by opposition from a plant manager of a big firm.

28. 2. Person who sit on the Board of Directors of a subsidiary
The person designated by a holding company to sit on the Board
of Directors of a firm within it has interests, can be considerate as
a senior managerial personnel when he acts as a representative to
direct the subsidiary’s business.

29. 3. Senior counsel
Some person can be considerate as a “senior managerial
personnel” without take the direction of a firm sector.
Example: senior counsel who support the line manager.

30. 4. Shareholder status
Be a shareholder for a senior doesn’t necessary implies that he is a
senior managerial personnel.
The status of senior managerial senior depends on the percentage
of shareholder participation.

32. III - RECOURSE OFFER TO SENIOR
MANAGERIAL PERSONNEL ABOUT
DISMISSAL

33. A. The provisions of the Canadian Labour Code
B. The provisions of the Civil Code of Québec

34. A – Canadian Labour Code
The contain of section 240 of the C.L.C :
Reference: LRC 1985, c L-2, s. 240
(1) Subject to subsections (2) et 242(3.1), any person
a) who has completed twelve consecutive months of continuous
employment by an employer, and;
b) who is not a member of a group of employees subject to a collective
agreement
may make a complaint in writing to an inspector if the employee has been
dismissed and considers the dismissal to be unjust.

35. Time period
(2) Subject to subsection (3), a complaint under subsection (1) shall be made within
ninety days from the date on which the person making the complaint was
dismissed.
Extention of the time
(3) The Minister may extend the period of time referred to in subsection (2)
where the Minister is satisfied that a complaint was made in that period to a
government official who had no authority to deal with the complaint but
that the person making the complaint believed the official had that
authority.
R.S., 1985, c. L-2, s. 240;
R.S., 1985, c. 9 (1st Supp.), s. 15.

36. Exclusion of “Managers”:
The current accepted definition of “manager” explain the
exemption because it’s limited to senior managers within an
organized hierarchy who be likely to be well paid and,
consequently, can lean on the common law instead of the
section 240 to correctly safe their interests.

37. Thus, a double criteria applies on the status of “manager”
definition.

38. Firstly, the person in question must be involved in the
management of the organization as a manager.
Indeed, the managers have an important position in the
organization (decisional position, more responsibility…).
The managers don’t only execute, they run or manage their
domain.
[Stone v. Bank of Nova Scotia, may 1994 (Abramsky), pp. 10-11,
case in which a bank director was excluded of section 240 because
of his status of “manager” ]

39. Secondly, a “manager” must also have the power to lead an
“independent action, and only at his own discretion”.
[Per Mackay J. In Island Telephone Co. v. Canada (Labour
Secretary), [1991] F.C.J. No. 978, 44 C.C.E.L. 168 (T.D.), p. 184]
Concerned person doesn’t necessarily need to have a “total”
independence to be a “manager”; all the person have to do is have
independence “… in several domains in which she is responsible” .
[Smith v. Sunwest Int’l. Aviation Services Ltd., Oct. 1998 (Poetker)]

40. Managers who satisfied to this two requirements
don’t belong to the vulnerable economically class
of employees point by section 240.
Consequently, seniors managerial personnel are
excluded of the protection system of section 240
above-mentioned.

41. B – Civil Code of Québec
As senior managerial personnel is excluded of the application of
Act respecting Labour Standards (s. 3 par. 6, A.L.S.), his claim must
find its rise in the Civil Code.
The claim must be pursue through a common law court, most of
the time the High Court, and aim the obtaining of compensation
representing the equivalent of the reasonable notice of
termination in the way of section 2091 Civil Code of Québec.

42. We have to notice that this section allows the employer to
terminate the indefinite contract which binding him to his
employee.
The notice compensation is set regardless of the nature and the
importance of the function exercised by the manager, his age and
his years of service.

43. MUTUAL OBLIGATIONS :
The Civil Code of Québec provides certain rules relating to the
employment contract and, accordingly, the breach of contract.
Theses rules are part of the common law et generally apply to
any employment contract, regardless of the status of the
employee or the employer.
The employment contract is fixed-term or indefinite. It is a fixed-
term if the parties have previously set a deadline by providing a
date or a event after which the contract expires.

44. Employment contract forces the employer:
to allow the execution of the performance of work agreed,
to pay the remuneration fixed,
to take appropriate measures to the nature of the work in order
to protect the health, the safety and the dignity of the employee.

45. Employment contract imposes to the employee:
to perform his work with prudence and diligence,
to act to with loyalty,
to refrain from the use of confidential information obtain in the
execution or during work.

46. END OF THE CONTRACT :
Each party can also terminate the indefinite contract of
employment by giving the other party a notice or a notice period
for this purpose.
During the notice, the contract continues between the parties with
the obligations related thereto each of them.
However, the notice can be paid in the form of monetary
compensation.

47. In all cases, the notice must be a reasonable period or reasonable
amount.
The reasonableness of the notice must be assessed based on
several factors including:
o The circumstances of the engagement;
o The nature and the importance of the work performed;
o The fact that the employee has left a sure and gainful job;
o The intention of the parties;
o The difficulty for one or other party to find a replacement, or an
other equivalent job;
o The years of service of the employee;
o The age of the employee

48. In general, parties can not terminate the fixed-
term employment contract before term.

49. REQUIREMENT OF SERIOUS AND SUFFICIENT
ARGUMENT TO TERMINATE THE CONTRACT OF
EMPLOYMENT:
However, whether under a fixed-term contract of employment or
under indefinite contract of employment, a partie may, for serious
cause, terminate, unilaterally and without notice the
employment contract.
The employer who invokes this right must demonstrate a serious
and sufficient argument for its decision to terminate the
employee’s employment, that is to say a serious breach of the
employee for performance its contractual obligations.

50. ACTION :
The party who fails to give notice to which it is entitled, is exposed
to a civil action against it.
When the dismissal is made irregularly, the employee may
go to the Court for redress.
The employee can claim reasonable notice of termination is due to
him, in the case of an indefinite employment contract, or the
compensation that would have been paid in the case of fixed-term
employment contract.

51. The employee may also claim moral damages when the the injury
was foreseeable or if the injury results from willful misconduct or
gross negligence.
Exemplary damages can also be granted when there was
intentional infringement to a right or freedom protected by the
Charter of Human Rights and Freedoms.
However, the employee can not obtain his reinstatement
by an action based on Civil Code of Québec.

52. TIME PERIOD :
The remedies under the Civil Code of Québec must be
pursued through court action, within tree years
following the dismissal.

54. BROWNSTEIN
BROWNSTEIN
& ASSOCIATES
6000 Côte des Neiges ,
Suite 590
Montréal, Québec
CANADA H3S 1Z8
Tel: (514) 939-9559 –
Fax: (514) 939-2289
Web site:
www.brownsteinlaw.co
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