Name of Cases:

Syndicat des professeurs et des professeures de l'Université du Québec à Trois-Rivières v. Université du Québec à Trois-Rivières

Syndicat des professeurs du CÉGEP de Ste-Foy, Fédération des enseignantes et enseignants de CÉGEP v. Attorney General of Quebec, CÉGEP de Ste-Foy

Syndicat de la fonction publique du Québec v. Attorney General of Quebec et Laplante

Syndicat de la fonction publique du Québec v. Attorney General of Quebec et Flynn

Status: Argued October 20, 2009. Judgment reserved.

Judgments under Appeal: Judgments of the Quebec Court of Appeal dated June 2, 2008

Facts: These four similar cases consider the issue whether under Quebec law only the provincial Labour Relations Board has jurisdiction to adjudicate unjust dismissal complaints by employees in so-called contingent employment, or whether such cases can be heard by arbitrators pursuant to collective agreements because the pertinent statutory provision, in the Quebec Labour Standards Act, is implicitly incorporated into the agreements. Employees whose status is considered contingent in the Labour Standards Act include those described as fixed-term, probationary, temporary, occasional or priority-list employees.

Section 124 of Quebec's Labour Standards Act states that "[a]n employee ... with two years of uninterrupted service in the same enterprise who believes that he has not been dismissed for good and sufficient cause may file a complaint in writing to the Commission des normes du travail [Labour Standards Board] or mail it to the address of the Commission des normes du travail within 45 days of his dismissal, except where a remedial procedure, other than for damages, is provided elsewhere in this Act, in another Act or in an agreement." Section 126 of the Act provides that, if the Labour Standards Board is unable to secure a settlement regarding the dismissal, it shall refer the complaint to the Quebec Labour Relations Board for adjudication.

Case Histories:

The S.P.U.Q. à Trois-Rivières and Laplante Cases

In Syndicat des professeures et professeurs de l'Université du Québec à Trois- Rivières v. Université du Québec à Trois-Rivières, [2008] J.Q. No. 4939 (QL), a professor at the university filed a grievance under the collective agreement alleging dismissal without good and sufficient cause after the employer decided in December 2004 not to renew the annual contract under which she had been working since January 1999.

Under the collective agreement, a fixed-term contract employee could grieve non-renewal only on the basis of evidence that the established performance evaluation process had not been followed or that there was bias or inconsistency in the employer's decision. However, the union maintained that s.124 of the Labour Standards Act requiring good and sufficient cause for dismissal was implicitly incorporated into the collective agreement. The arbitrator agreed with the university's objection that he did not have jurisdiction to hear the grievance because s.124 was not incorporated into the agreement. The Quebec Superior Court denied the union's application for judicial review of this ruling, and in June 2008 the Quebec Court of Appeal dismissed the union's appeal, for the reasons set out in another case decided on the same day, Québec (Procureur général) v. Syndicat de la fonction publique du Québec et Laplante, [2008] J.Q. No. 4945 (QL).

The Laplante decision to which the Court of Appeal referred addressed in detail the interplay between s.124 of the Act and collective agreements. In Laplante, the Court heard together six cases, each of which involved a contingent employee who had worked under a collective agreement that did not permit such employees to grieve termination of employment except to the extent of determining whether the proper procedure had been followed and whether the employer's reasons were real and non-discriminatory. Also, in each case, the employee was entitled to file a complaint of dismissal without just and sufficient cause with the Labour Standards Board, pursuant to s.124 of the Act, by virtue of having had two years of uninterrupted service in the same enterprise.

The position of the unions before the Quebec Court of Appeal was that the Labour Standards Act establishes minimum standards from which the parties to a collective agreement cannot opt out; that these minimum standards are implicitly incorporated into every collective agreement; and that consequently only a grievance arbitrator has jurisdiction to deal with the matters in dispute. The Court noted that this view had found support among some arbitrators and some Quebec Superior Court judges, and was also endorsed by the Labour Standards Board. On the other hand, the position of Quebec's Attorney General as well as of the employers was that the Act gives exclusive jurisdiction to the Labour Relations Board to adjudicate complaints pursuant to s.124, and the will of the legislators in this regard should be respected.

In the unanimous decision of a three-member panel, the Quebec Court of Appeal emphasized that the Supreme Court of Canada has long "accorded central importance to considering the intention of the legislator and the words used by the latter in determining the competent authority in labour relations matters." Against this background, the Court acknowledged that "some people could legitimately prefer to give jurisdiction to a grievance arbitrator when an employee subject to a collective agreement files a complaint pursuant to s.124 of the Act. One may think that an arbitrator would be better able to find an adequate solution that takes into account labour relations in a unionized workplace, including the question of the possible reinstatement of an employee."

However, the Court held, that was not the path chosen by the legislators. They decided in favour of another specialized tribunal: the Labour Relations Board. Moreover, the Court considered, no one had seriously suggested, let alone proved, that the Board had difficulty in carrying out its legislated mission when it was presented with a complaint filed by an employee governed by a collective agreement. Therefore, the Court ruled, s.124 of the Act was not incorporated into collective agreements and arbitrators did not have jurisdiction unless the parties expressly provided otherwise.

The Flynn and Syndicat des professeurs du CÉGEP de Ste-Foy Cases

The Quebec Court of Appeal also decided in a like fashion two other similar cases in which the Supreme Court of Canada has granted leave to appeal, namely Québec (Procureur général) v. Syndicat de la fonction publique du Québec et Flynn, [2008] J.Q. No. 4944 (QL), and Syndicat des professeurs du CÉGEP de Ste-Foy v. Québec (Procureur général), [2008] J.Q. No. 4940 (QL).

In the former case, an occasional employee of the provincial Ministry of Natural Resources was dismissed following an unsatisfactory performance evaluation and grieved the dismissal on the basis of s.124. An arbitrator determined that she had jurisdiction to hear the case and upheld the grievance, and a Quebec Superior Court judge dismissed the employer's application for judicial review. In the latter case, a professor grieved removal from the priority list for future contracts for reasons of inadequate performance and student complaints. An arbitrator held that she did not have jurisdiction as s.124 was not implicitly incorporated into the collective agreement, and the Quebec Superior Court dismissed the professor's application for judicial review.

Issue(s): Whether under Quebec's Labour Standards Act only the provincial Labour Relations Board has jurisdiction to adjudicate unjust dismissal complaints by employees in so-called contingent employment, or whether such cases can be heard by arbitrators pursuant to collective agreements because the pertinent statutory provision is implicitly incorporated into the agreements.

Lancaster Reference: See Lancaster's Labour Law E-Bulletin, May 12, 2009, Issue No. 235.

Court of Appeal Decision: http://onlinedb.lancasterhouse.com/images/up-1QCA_FonctionPublique.pdf