Names of Cases:
Syndicat de la fonction publique du Québec (SFPQ) v. Attorney General of Quebec (dismissal of casual employee Claude Mireault)
Syndicat de la fonction publique du Québec (SFPQ) v. Attorney General of Quebec (dismissal of probationary employee Lahcene Messaoudan)
Syndicat des professeurs et des professeures de l'Université du Québec à Trois-Rivières v. Université du Québec à Trois-Rivières (refusal to renew fixed-term employment contract of professor)
Syndicat des professeurs du CÉGEP de Ste-Foy, Fédération des enseignantes et enseignants de CÉGEP v. Attorney General of Quebec, CÉGEP de Ste-Foy (withdrawal of employment priority for CÉGEP teacher)
Date of Decisions: July 29, 2010
Supreme Court Panel: Justices Louis LeBel, Morris Fish, Rosalie Abella, Louise Charron and Thomas Cromwell (concurring); Chief Justice Beverley McLachlin, and Justices Ian Binnie, Marshall Rothstein and Marie Deschamps (dissenting in SFPQ cases)
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 – in particular Quebec's labour standards law, i.e. An act respecting labour standards ("ALS" or "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. Employees whose status is considered contingent include those described as fixed-term, probationary, temporary, occasional or priority-list employees.
Section 124 of Quebec's ALS provides as follows:
An employee credited 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.
With respect to such complaints, s.126 of the Act provides that "[i]f no settlement is reached following receipt of the complaint by the Commission des normes du travail, the Commission des normes du travail shall, without delay, refer the complaint to the Commission des relations du travail [Labour Relations Board]." Section 128 of the Act provides that "[w]here the Commission des relations du travail considers that the employee has been dismissed without good and sufficient cause, the Commission may (1) order the employer to reinstate the employee; (2) order the employer to pay to the employee an indemnity up to a maximum equivalent to the wage he would normally have earned had he not been dismissed; (3) render any other decision the Commission believes fair and reasonable, taking into account all the circumstances of the matter."
In the SFPQ cases, the 1998-2002 collective agreement between the Quebec government and the union representing public service employees provided in Article 4-14.28 that the agreement's disciplinary provisions, including Article 4-14.21, pursuant to which employees could grieve disciplinary action taken against them, did not apply to seasonal or casual employees unless they were hired for periods of one year or more or had, in the case of casual employees, at least 12 months of service. No other recourse was provided for employees to whom the grievance procedure was not available.
Article 5-17.04 of the agreement provided that an employee dismissed during or at the end of a probationary period could not grieve the dismissal.
Case Histories:
(1) The SFPQ v. Attorney General of Québec Cases
In the first of the SFPQ cases, the union challenged the dismissal on disciplinary grounds of casual employee Claude Mireault. This employee had completed 188 days of service between April 23, 2001 and December 2, 2003, which was fewer than the 260 days of service needed, as negotiated by the parties, to avail himself of Article 4-14.21 of the collective agreement. However, Mireault argued that he had completed the two years of uninterrupted service required by s.124 of the ALS. [Editors' Note: Under s.124 of the ALS, service is considered to be uninterrupted provided there is no actual separation from employment – e.g. a dismissal. Thus, for seasonal employees, it has been held that periods during which those employees do not work do not break the chain in service. In this case, the worker was employed for more than 2 calendar years, without such a break in service, and therefore he met the requirements under the Act.] On that basis, he sought to have his dismissal overturned.
The second case involved the dismissal of a probationary employee, Lahcene Messaoudan, during the probation period. Like Mireault, he submitted that he had completed the two years of uninterrupted service required by s.124 of the Act and was therefore entitled to contest his dismissal, notwithstanding the provisions of the collective agreement that purported to preclude this.
In Mireault's case, Arbitrator Maureen Flynn accepted the union's argument that, because the ALS is a statute of public order, the substantive standard established in s.124 is incorporated into the collective agreement. She therefore dismissed the employer's preliminary objection and concluded that she had jurisdiction to hear the grievance. On the merits, the arbitrator found that the employer had not shown that Mireault had done anything serious enough to warrant dismissing him without first applying progressive discipline. She allowed the grievance and held that Mireault had been wrongfully dismissed.
In the Messaoudan case, Arbitrator Pierre Laplante upheld the employer's preliminary objection to his jurisdiction to hear the grievance. The arbitrator found that the intention of the parties to the collective agreement that employees who were on probation should not be entitled to challenge their dismissal before an arbitration board was inconsistent with the standard in s.124 of the Act, but that s.124 was not incorporated into the collective agreement. He therefore concluded that he had no jurisdiction to hear the grievance.
The same Quebec Superior Court judge heard applications for judicial review of both cases. Adopting Arbitrator Flynn's reasoning, he held that the arbitrators had exclusive jurisdiction over the disciplinary grievances. He accordingly dismissed the motion for judicial review in Mireault's case and allowed the one in Messaoudan's.
The Quebec Court of Appeal, however, reversed the lower court judge's rulings. It rejected the view that s.124 was incorporated into every collective agreement, holding that the legislation would have stated this explicitly if that were the intent. Further, the Court found that the Act gave the Labour Relations Board, a specialized tribunal, exclusive jurisdiction over complaints under s.124. Consequently, it ruled that both grievances were not properly before the respective arbitrators, and dismissed them.
The union sought and obtained leave to appeal the Court of Appeal's decisions to the Supreme Court of Canada.
(2) The Syndicat des professeures et professeurs de l'Université du Québec à Trois-Rivières and Syndicat des professeurs du CÉGEP de Ste-Foy Cases
In Syndicat des professeures et professeurs de l'Université du Québec à Trois-Rivières v. Université du Québec à Trois-Rivières, 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. The union, however, argued that s.124 of the ALS,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 on the basis of s.124 as this provision was not incorporated into the agreement. He nonetheless ruled that he could proceed under a clause of the collective agreement which established an equivalent remedial procedure to s.124. The Quebec Superior Court upheld the arbitrator's decision. The Quebec Court of Appeal dismissed the union's appeal, for the reasons set out in SFPQ v. Attorney General of Québec (see Messaoudan case described above).
In the Syndicat des professeurs du CÉGEP de Ste-Foy case, a CÉGEP teacher grieved the withdrawal of employment priority from him for future contracts. The union initially relied on a clause in the collective agreement pursuant to which a teacher who has held a full-time position for two years or has at least three years of seniority may contest the withdrawal of employment priority by the employer before an arbitrator on the ground that there was no reasonable basis for the employer's decision. At the hearing, however, the union argued that this clause was inapplicable in light of the ALS and that the withdrawal of employment priority constituted dismissal requiring the employer to show good and sufficient cause within the meaning of s.124 of the ALS. The arbitrator disagreed, finding the employer had shown a reasonable basis within the meaning of the collective agreement for the withdrawal of employment priority. With respect to the question whether she had power to apply s.124 of the ALS, the arbitrator ruled that the collective agreement provided for no other equivalent remedial procedure entitling an
employee to have the withdrawal of his or her employment priority reviewed on the basis of a labour standard similar to the standard of good and sufficient cause established in s.124 of the ALS. Accordingly, exclusive jurisdiction to apply s.124 rested with the Labour Relations Board. The Quebec Superior Court dismissed the teacher's application for judicial review and this ruling was affirmed by the Quebec Court of Appeal.
Issue(s): Whether under the ALS only the provincial Labour Relations Board has jurisdiction to adjudicate unjust dismissal complaints by employees or whether such cases can be heard by arbitrators pursuant to collective agreements because the relevant statutory provisions are implicitly incorporated into the agreements.
Supreme Court's Decision:
(1) The SFPQ v. Attorney General of Québec Cases
In a 5-4 split, the majority of the Court allowed the appeals in the SFPQ cases, in both cases ruling that the arbitrators had jurisdiction to hear the grievances before them. While the majority (and the minority) agreed with the employers that s.124 of the ALS was not implicitly incorporated into collective agreements, the real determinant in the majority's view was whether, in light of the modifications to the collective agreement that flow from the “public order” status of the ALS, the agreement provides for remedial measures equivalent to those under s.124 of the ALS. In the cases at bar, the clauses denying the appellants access to grievance arbitration to contest their dismissal were inconsistent with the substantive standard in s.124 of the ALS and were therefore null and deemed unwritten. Since the arbitrators, acting pursuant to the modified terms of the collective agreement and the supplementary powers available to them under the Quebec Labour Code, had equivalent powers of intervention in proceedings with similar guarantees of independence and impartiality, the majority concluded that the arbitrators had jurisdiction to hear the grievances.
(2) The Syndicat des professeures et professeurs de l'Université du Québec à Trois-Rivières and Syndicat des professeurs du CÉGEP de Ste-Foy Cases
The majority and minority unanimously dismissed the appeals in the Syndicat des professeures et professeurs de l'Université du Québec à Trois-Rivières andSyndicat des professeurs du CÉGEP de Ste-Foy cases, referring to their reasons in the SFPQ cases, in particular the conclusion that s.124 of the ALS is not implicitly incorporated into collective agreements, and finding that each case could be decided on the basis of clear collective agreement provisions.
Reasons:
(1) The SFPQ v. Attorney General of Québec Cases
The Supreme Court's reasons with respect to the substantive issue linking all four cases – i.e. the issue of jurisdiction – were provided in the SFPQ cases.
Majority
Writing the 5-4 majority decision of the Court, Justice Louis LeBel ruled that s.124 of the ALS is not incorporated into collective agreements. More to the point, however, in LeBel's view, is the fact that the Act is "public order" legislation. Accordingly, s.124 takes precedence over collective agreement provisions and nullifies any that are inconsistent with it.
With regard to the issue of incorporation, Justice LeBel cited s.81.20 of the Act which states that certain other sections "are deemed to be an integral part of every collective agreement." He reasoned that "[i]f, as the [union] contends, the legislature had intended to incorporate the substantive standard established in s.124 A.L.S. into every collective agreement, it would have done so in the same manner as in s.81.20 A.L.S., that is, by saying so expressly. There is no reason to think that the legislature chose to use two different drafting techniques to achieve the same result in the same statute."
However, LeBel considered that "the issue is framed incorrectly and does not reflect the true question raised by the appeals. To me, the issue is not whether the provisions of the A.L.S. are incorporated into the collective agreement or how jurisdiction is formally conferred on the [Labour Relations Board]. Rather, these appeals raise a question about the hierarchy of sources of Quebec labour law and more specifically about how the A.L.S., as a statute of public order, affects the content of collective agreements and thus the jurisdiction conferred on the grievance arbitrators responsible for interpreting and applying such agreements."
In this regard, he cited the decision of the Quebec Court of Appeal in Produits Pétro-Canada Inc. v. Moalli, [1987] R.J.Q. 261, and affirmed that "[a]lthough procedural in form, s.124 does not just create a remedy, as it also establishes a substantive labour standard that prohibits the dismissal or termination of an employee without good and sufficient cause once the employee has completed the required period of service. This standard applies to every individual contract for a fixed or indeterminate term, and every collective agreement. It accordingly constitutes an exception to the traditional principles of freedom of contract, and it limits the employer's discretion to terminate any contract of employment with an indeterminate term at will upon giving sufficient notice."
LeBel noted that "[s]ection 93 expressly provides that the A.L.S. is a statute of public order. It reads as follows: 'Subject to any exception allowed by this Act, the labour standards contained in this Act and the regulations are of public order. In an agreement or decree, any provision that contravenes a labour standard or that is inferior thereto is absolutely null.'"
He concluded from this that "[v]iewed narrowly, the fact that the A.L.S. is a statute of public order would mean only that the parties cannot agree to eliminate the recourse available to employees under s.124 A.L.S. Such an interpretation seems too restrictive. The public order status the legislature has attributed to this provision means that no individual contract or collective agreement can prevent an employee credited with two years of uninterrupted service who is dismissed without good and sufficient cause from contesting his or her dismissal, and that any provision of such an agreement that purports to do so is of no effect. The agreement survives, but any of its provisions that are inconsistent with the minimum standard are of no effect. They are deemed unwritten … and the agreement must be considered, interpreted and applied accordingly…. [T]he mandatory nature of the standard means that any provision of an agreement that is inconsistent with the prohibition against the dismissal without good and sufficient cause of an employee credited with two years of uninterrupted service will be deemed unwritten, which alters the content of the collective agreement. The rest of the contract or agreement will survive a finding that the clause is invalid."
Applying this to the specifics of the two cases before the Court, LeBel held, first, that "Mr. Mireault argues that he was credited with two years of uninterrupted service within the meaning of the A.L.S. Therefore, under s.124 A.L.S., he could not be dismissed without good and sufficient cause, and he met the conditions for having a neutral authority determine whether his dismissal was lawful. Clause 4-14.28 of the collective agreement precluded the exercise of that right, since it prohibited Mr. Mireault, as a casual employee, from submitting his complaint to arbitration. However, on the basis of the principles discussed above, clause 4-14.28 is absolutely null and therefore deemed unwritten because it is inconsistent with the substantive standard in s.124. Clause 4-14.28 denies employees who have completed two years of uninterrupted service the right to contest a dismissal without good and sufficient cause. It is therefore necessary to go back to clause 4-14.21, which establishes the right to file a grievance…. [W]hat must be determined is whether the arbitrator can review a dismissal made without good and sufficient cause and grant remedies equivalent to those that could be ordered by the [Labour Relations Board]."
LeBel concluded that "[s]ince the grievance arbitrator acts under the collective agreement (clause 4-14.24) and the [Labour Code] – which establishes and supplements the arbitrator's powers … – he or she has an equivalent capacity for intervention. The proceedings would therefore be brought before decision-makers with similar powers of intervention and similar guarantees of independence and impartiality…. I would therefore conclude that grievance arbitration is an equivalent recourse in this case because of the way the A.L.S., as a statute of public order, affects the content of the agreement, and on that basis I would find that the arbitrator had jurisdiction."
Justice LeBel further ruled that "I would reach the same conclusion in Mr. Messaoudan's case…. Like clause 4-14.28 in the case of seasonal or casual employees, clause 5-17.04 of the collective agreement for Quebec government employees provides that grievance arbitration is not available to probationary employees. Since that clause is inconsistent with the substantive standard in s.124 A.L.S., it is absolutely null and is therefore deemed unwritten. With this obstacle out of the way, the arbitrator could consider the merits of the dismissal and take the appropriate remedial action. Because the recourses were equivalent, the arbitrator had jurisdiction [in accordance with the exception in s.124] and could hear the grievance."
Minority
Deschamps J. authored the opinion on behalf of the minority of the Court, which included Chief Justice Beverley McLachlin. The minority, like the majority, held that s.124 was not incorporated into collective agreements because there was no explicit legislative intention that this occur. However, the dissenting judges disagreed that arbitrators had jurisdiction in these cases under the collective agreement at issue. In the minority's view the provisions of the agreement that limited access to the grievance procedure were not contrary to public order as they did not deprive the affected employees of the protection of s.124, albeit enforceable by the Labour Relations Board rather than by an arbitrator.
(2) The Syndicat des professeures et professeurs de l'Université du Québec à Trois-Rivières and Syndicat des professeurs du CÉGEP de Ste-Foy Cases
In the Syndicat des professeures et professeurs de l'Université du Québec à Trois-Rivières case, the majority held that the provisions of the collective agreement regarding dismissal were sufficiently clear. The arbitrator accordingly had jurisdiction to hear the grievance and grant any appropriate remedies on the basis of those provisions without considering the effect of s.124 of the ALS on the collective agreement. For these reasons, the majority ordered the grievance remanded to the arbitrator to be heard as drafted.
The minority reached a similar conclusion. While in cases where an adequate procedure is not set out in the collective agreement exclusive responsibility for hearing complaints against such dismissals rests with the Labour Relations Board, in this case the applicable collective agreement afforded adequate protection and the arbitrator thus had jurisdiction to hear the employee's complaint.
In the case Syndicat des professeurs du CÉGEP de Ste-Foy, the majority, relying on its reasoning in the SFPQ cases, again rejected the argument that the standard established in s.124 of the ALS is incorporated into the collective agreement. In this case, the majority found that the clause in the agreement relied upon by the arbitrator to dismiss the grievance concerned a specific type of termination of the employment relationship. Viewed in the context of agreement as a whole the clause was not contrary to public order. On this basis the majority dismissed the appeal.
The minority came to the same conclusion on the issue of incorporation of the s.124 dismissal standard into the collective agreement. It reiterated its ruling in the SFPQ cases that, where an agreement does not contain a provision that protects employees adequately, the Labour Relations Board is the exclusive forum for hearing complaints presented by employees who allege that they have been dismissed without good and sufficient cause.
Lancaster Reference: For analysis and comment with respect to the issues in these cases, see Lancaster's Headlines, published September 8, 2010.
Full Text of the Decisions:
Syndicat de la fonction publique du Québec (SFPQ) v. Attorney General of Quebec (dismissal of casual employee Claude Mireault); Syndicat de la fonction publique du Québec (SFPQ) v. Attorney General of Quebec (dismissal of probationary employee Lahcene Messaoudan)
Syndicat des professeurs et des professeures de l'Université du Québec à Trois-Rivières v. Université du Québec à Trois-Rivières (refusal to renew fixed-term employment contract of professor)
Syndicat des professeurs du CÉGEP de Ste-Foy, Fédération des enseignantes et enseignants de CÉGEP v. Attorney General of Quebec, CÉGEP de Ste-Foy (withdrawal of employment priority for CÉGEP teacher)
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