A Quebec Court of Appeal decision dated January 30, 2012, reaffirms that a grievance arbitrator has no jurisdiction to rule on a worker's reinstatement, with accommodations, in the same job he or she held before an employment injury when the Commission de la santé et de la sécurité du travail (CSST) has already rendered a decision on the matter.1 The Court of Appeal also confirmed that a collective agreement, in matters under the CSST's exclusive jurisdiction, is to be applied by the parties on the basis of the decisions rendered regarding a worker's injury.
A member of the Communications, Energy and Paperworkers Union of Canada (Union) was working as a mechanical maintainer at Tembec when he suffered an employment injury. The injury was consolidated with functional disabilities.
The CSST determined that the worker was unable to resume the work he had performed before the employment injury. As part of the rehabilitation process, the CSST decided that the worker was able to carry on suitable employment as a paperworker at the employer, which re-employed him as a paperworker after the two (2) year time limit prescribed in An Act respecting industrial accidents and occupational diseases2 (AIAOD) for the exercise of the right to return to work had expired.
The worker, using the mechanisms provided in the AIAOD, contested the CSST's determination that he was able to carry on suitable employment as a paperworker. The contestation was discontinued by the worker and consequently came to naught. At the same time, the Union filed a grievance, on behalf of the worker, contesting the employer's refusal to reinstate the worker, with accommodations, in the job he had held before he was injured, i.e. that of mechanical maintainer. The grievance was based, most notably, on the Charter of Human Rights and Freedoms.3
Relying upon the SÉPAQ decision,4 which dealt with the same issue, the employer objected to the grievance arbitrator's jurisdiction to hear such a grievance on appeal as the matter fell within the exclusive jurisdiction of the CSST and the Commission des lesions professionnelles (CLP). The arbitrator, François Hamelin, agreed with the employer. The Superior Court felt that the arbitrator had not committed any error in declining jurisdiction and dismissed the Union's application for judicial review.
In all proceedings, the Union tried to sidestep the SÉPAQ decision by arguing that the dispute arose exclusively from the collective agreement, referring specifically to a provision in the agreement that states that a worker's absence due to an employment injury shall not interrupt the accumulation of uninterrupted service. The Union maintained that the CSST had exhausted its jurisdiction and that the employer had re-employed the worker in suitable employment as a paperworker after the two (2) year time limit prescribed in the AIAOD for the exercise of the right to return to work had expired because of the aforementioned provision in the collective agreement, not because of the AIAOD. Consequently, it argued, such a provision in the collective agreement – which was more generous than the AIAOD – conferred jurisdiction upon the grievance arbitrator to hear the grievance.
The judgment of the Court of Appeal
The Court of Appeal dismissed the appeal, confirming the judgment of the Superior Court and the arbitrator's decision, while asserting the teachings of the SÉPAQ case and insisting that matters over which the CSST has exclusive jurisdiction – recognition of an employment injury, consolidation, determination of functional disabilities, worker's ability to carry on the work he or she was performing prior to the employment injury, determination of suitable employment, and so forth – can only be contested using the mechanisms provided in the AIAOD. The Court added that a collective agreement, when it relates to a matter over which the CSST has exclusive jurisdiction, [translation] "must be applied while taking the decision of the CSST as accepted fact."
Moreover, the fact that the worker returned to work after the right to return to work expired does not mean that the fact that he suffered an employment injury and the CSST supported the worker in his rehabilitation and return to work can be ignored. According to the Court, the worker's reinstatement by the employer after the right to work had expired did not arise from the collective agreement, but was the result of the steps taken and decisions made by the CSST.
The decision of the Court of Appeal serves as a reminder that the CSST and the CLP have exclusive jurisdiction over matters covered by the AIAOD and that there is no room in Quebec law for a parallel system under which the employer, the accredited association and the worker can discuss these matters in front of a grievance arbitrator and sidestep the decisions of the CSST.
Although the parties to a collective agreement can negotiate and introduce more advantageous provisions than those in the AIAOD, they cannot defeat the CSST's exclusive jurisdiction and reopen discussions on matters ruled on by the CSST, which can only be contested using the mechanisms provided in the AIAOD, to the exclusion of the grievance arbitrator.
1 Syndicat canadien des communications, de l'énergie et du papier, section locale 427 c Tembec, usine de Matane, 2012 QCCA 179.
2 R.S.Q., c. A-3.001.
3 R.S.Q., c. C-12.
4 Société des établissements de plein air du Québec c Syndicat de la fonction publique du Québec, 2009 QCCA 329.
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