Canada: Jurisdiction In Respect Of Section 124 Of The Labour Standards Act: The Court Of Appeal Rules

The Court of Appeal has ruled that a grievance arbitrator does not have jurisdiction to apply section 124 of the Act respecting labour standards ("LSA") and that only the Commission des relations du travail ("CRT") has jurisdiction in matters involving this remedy.

Rights Of Employees Whose Status Is Not Permanent

Collective agreements usually bar employees who have not completed a probationary period from using the grievance process to challenge their dismissal. Similar provisions may also apply to other employees, such as temporary, occasional or seasonal workers.

It is nevertheless recognized that all employees whose status is not permanent have, notwithstanding any provision to the contrary, the right to challenge their dismissal if it was carried out in violation of a public policy standard. It has been held that public policy standards, while not spelled out in the collective agreement, are implicitly incorporated into every collective agreement,¹ provided that such incorporation is not incompatible with the public policy provisions themselves or with the collective labour relations scheme.²

Accordingly, employees whose status is not permanent may challenge their dismissal before an arbitrator, in spite of any contrary provision, if they can show that they were dismissed for a reason that offends the Charter of human rights and freedoms. However, the aggrieved employee (and the union) will have the burden of proving such Charter violation.³ Similarly, it has been held that employees may challenge their dismissal if they can show that the employer, in proceeding with the dismissal, violated its good faith obligations under sections 6 and 7 of the Civil Code of Québec.⁴

Thus, employees whose status is not permanent have a limited right to challenge their employer's decision to terminate their employment through the grievance process; this right is obviously less advantageous to such employees than the rights usually granted to employees covered by a collective agreement, who may be dismissed only where their employer is able to prove good and sufficient cause.

Section 124 Of The LSA

In Quebec, an employee credited with two years of uninterrupted service is entitled to challenge a decision terminating his or her employment by presenting a complaint under section 124 LSA. Employees who have access to an equivalent remedial procedure provided for in a statute, a collective agreement or a contract of employment are excluded from the scope of the provision. Accordingly, unionized employees who are able to challenge the good and sufficient basis for their dismissal through the grievance process cannot avail themselves of this remedy. However, unionized employees with two years of uninterrupted service but whose employment status is not permanent can use the remedy since their right to challenge their dismissal by way of grievance is limited and does not amount to an equivalent "remedial procedure" within the meaning of section 124 LSA.⁵

Jurisdiction Over The Application Of Section 124 LSA

In principle, all complaints under section 124 LSA are initially submitted to the Commission des normes du travail ("CNT"). If a settlement is not reached, the complaint will be referred to the Commission des relations du travail ("CRT"), which then has jurisdiction to render the decision that it deems appropriate (sections 126 to 128 LSA).

However, there have been many disputes in which unions have contended that a grievance arbitrator had the jurisdiction necessary to apply section 124 LSA in the case of a non-permanent unionized employee credited with two years or more of uninterrupted service.

The unions' argument proceeds along the following lines. The Court of Appeal had previously held that section 124 LSA was a public policy standard.⁶ The Supreme Court of Canada subsequently held in Parry Sound⁷ that all public policy standards related to working conditions were incorporated into every collective agreement. Consequently, a grievance arbitrator had the jurisdiction necessary to hear a grievance by a non-permanent unionized employee based on section 124 LSA. The employers disputed this conclusion on the basis that the legislator had conferred exclusive jurisdiction on the CRT with respect to the application of section 124 LSA.

The Ruling By The Court Of Appeal

This jurisdictional debate has given rise to much controversy in the case law, with arbitrators and the Superior Court alike being divided on the issue, leading to numerous appeals to the Quebec Court of Appeal. In order to settle the question, the Court of Appeal decided to join and hear together six cases that had been brought before it.

The judgments of the Court of Appeal were handed down on June 2, 2008.⁸ The Court sets out its detailed reasons for judgment in Québec (Procureur général) c. Syndicat de la fonction publique du Québec,⁹ and refers to those reasons as the basis for its identical conclusions in the other cases.

In that case, arbitrator Pierre Laplante had dismissed the grievance of a temporary employee who had probationary status (even though he was credited with more than two years of uninterrupted service), on the grounds that the procedure provided for in the collective agreement had been followed and the employer's decision had not been taken to circumvent the collective agreement or for a discriminatory reason.

The arbitrator had also found that, contrary to the union's submissions, section 124 LSA was not incorporated in the collective agreement, and had thus declined to take any jurisdiction under that provision.¹⁰

The union had successfully challenged the arbitration award before the Superior Court,¹¹ which found in essence that the question of the fairness of a dismissal was more compatible with the arbitrator's jurisdiction than with the CRT's; moreover, the dispute had to be resolved according to the grievance procedure provided for in the collective agreement, thus precluding the CRT's jurisdiction.

The Court of Appeal allowed the appeal, overturned the judgment of the Superior Court and reinstated the arbitration award of arbitrator Pierre Laplante.

Basically, the Court of Appeal found that all the union's arguments to the effect that section 124 LSA was implicitly incorporated in every collective agreement were predicated on an erroneous premise, namely, that the act did not give exclusive jurisdiction to the CRT. Indeed, it is expressly provided, in section 114 of the Labour Code, that the CRT "shall hear and dispose, to the exclusion of any court or tribunal, ... of any proceedings brought pursuant to [the Labour Code] or any other Act ...." Schedule I to the Labour Code lists all the proceedings that are brought before the CRT pursuant to other acts. In particular, par. 15) of the Schedule refers to proceedings brought under section 126 LSA, which latter section provides that any complaint under section 124 LSA which cannot be settled by the CNT is referred to the CRT.

Since the legislator had expressly designated an exclusive forum for the exercise of the remedy under section 124 LSA, a grievance arbitrator could not be found to have jurisdiction, even concurrent jurisdiction, with respect to that remedy. Moreover, any finding to the contrary would have run counter to the clearly expressed intention of the parties to the collective agreement, who had excluded the right of an employee whose status was not permanent to challenge the basis for his or her dismissal. The legality of that provision of the collective agreement was not in dispute before the Court of Appeal.

Practical Conclusions

It emerges from this recent series of judgments by the Court of Appeal that where unionized employees whose status is not permanent are subject to a clause in the collective agreement barring them from challenging the good and sufficient basis for their dismissal through the grievance process, those with more than two years of service cannot allege that a clause of this kind is contrary to section 124 LSA. In case of dismissal, such employees may nevertheless exercise the following remedies:

• a grievance alleging that their employer, in its decision to dismiss them, contravened a public policy provision (discrimination or any other illegal basis for dismissal) or its good faith obligation; and
  
  
• a complaint under section 124 LSA before the CRT (if they have two or more years of uninterrupted service).
  
  

These two remedies are separate remedies and can be exercised simultaneously without the possibility of lis pendens or res judicata being raised.¹²

Footnotes

1. Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157.

2. Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés de garage du Québec inc., [2006] 1 S.C.R. 27.

3. Syndicat des professionnelles et professionnels en soins infirmiers et cardiorespiratoires de Drummondville (FIQ) et Centre de santé et de services sociaux Drummond (Carole McGrath), D.T.E. 2008T-385 (Jean-Guy Ménard, arbitrator).

4. Syndicat de l'enseignement de la région de Québec c. Ménard, D.T.E. 2005T-453 (C.A.).

5. Malo c. Côté-Desbiolles, (1995) R.J.Q. 1686 (C.A.).

6. Produits Pétro-Canada c. Moalli, [1987] R.J.Q. 261 (C.A.).

7. Supra, note 1.

8. Québec (Procureur général) c. Syndicat de la fonction publique du Québec, 2008 QCCA 1046; Québec (Procureur général) c. Syndicat de la fonction publique du Québec, 2008 QCCA 1054; Syndicat du personnel de soutien de la Commission scolaire des Sommets (CSN) c. Commission scolaire des Sommets, 2008 QCCA 1055; Syndicat des professeures et professeurs de l'Université du Québec à Trois-Rivières c. Université du Québec à Trois-Rivières, 2008 QCCA 1056; Syndicat des professeurs du Cégep de Ste-Foy c. Québec (Procureur général), 2008 QCCA 1057; Mont-Tremblant (Ville de) c. Poulin, 2008 QCCA 1058.

9. 2008 QCCA 1054.

10. Syndicat de la fonction publique du Québec et Québec (Ministère du Revenu) (Lahcene Messooudan), D.T.E. 2006T-473 (Pierre Laplante, arbitrator).

11. Québec (Procureur général) c. Flynn, D.T.E. 2006T-1000 (Justice W. Fraiberg, S.C.).

12. That was the finding in Ville de Mont-Tremblant, supra, note 8.

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