Syndicat de la fonction publique du Québec v. Quebec (Attorney General)

Syndicat de la fonction publique du Québec v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
2010-07-29
Neutral citation
2010 SCC 28
Report
[2010] 2 SCR 61
Case number
32771, 32772
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Labour law
Notes
SCC Case Information: 32772, 32771
Decision Content
SUPREME COURT OF CANADA
Citation: Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61
Date: 20100729
Docket: 32771, 32772
Between:
Syndicat de la fonction publique du Québec
Appellant
and
Attorney General of Quebec
Respondent
‑ and ‑
Commission des normes du travail and Confédération des syndicats nationaux
Interveners
And Between:
Syndicat de la fonction publique du Québec
Appellant
and
Attorney General of Quebec
Respondent
‑ and ‑
Confédération des syndicats nationaux
Intervener
Official English Translation
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 54)
Dissenting Reasons:
(paras. 55 to 117)
LeBel J. (Fish, Abella, Charron and Cromwell JJ. concurring)
Deschamps J. (McLachlin C.J. and Binnie and Rothstein JJ. concurring)
______________________________
Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61
Syndicat de la fonction publique du Québec Appellant
v.
Attorney General of Quebec Respondent
and
Commission des normes du travail and Confédération
des syndicats nationaux Interveners
‑ and ‑
Syndicat de la fonction publique du Québec Appellant
v.
Attorney General of Quebec Respondent
and
Confédération des syndicats nationaux Intervener
Indexed as: Syndicat de la fonction publique du Québec v. Quebec (Attorney General)
2010 SCC 28
File Nos.: 32771, 32772.
2009: October 20; 2010: July 29.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Labour relations — Wrongful dismissal — Recourse — Jurisdiction of arbitrator or Commission des relations du travail — Arbitration procedure provided for in collective agreement with respect to dismissal not available to employees without job security — Act respecting labour standards establishing recourse before Commission des relations du travail in case of dismissal without good and sufficient cause, except where equivalent remedial procedure provided for elsewhere in legislation or in agreement — Grievances filed in which employees complained they had been dismissed without good and sufficient cause — Whether labour standard prohibiting wrongful dismissal implicitly incorporated into collective agreement — Whether arbitrator or Commission has jurisdiction over complaint — Act respecting labour standards, R.S.Q., c. N‑1.1, s. 124.
The collective agreement for government employees between the union and the Quebec government provided that casual employees hired for periods of less than one year and with less than 12 months of service, and probationary employees, may not, on being terminated, grieve their dismissal. The employment of C, a casual employee, and that of L, a probationary employee, were terminated. The union filed grievances in which it alleged that the employees had been dismissed without good and sufficient cause. As a preliminary matter in each of their cases, the employer challenged the arbitrator’s jurisdiction on the ground that jurisdiction over the complaints of wrongful dismissal lay with the Commission des relations du travail (“C.R.T.”). The union argued that the standard of public order provided for in s. 124 of the Act respecting labour standards (“A.L.S.”) is implicitly incorporated into every collective agreement and that the arbitrator accordingly had the necessary jurisdiction to dispose of the grievances. In C’s case, the arbitrator concluded that she had jurisdiction to hear the grievance, allowed the grievance and held that C had been wrongfully dismissed. In L’s case, the arbitrator upheld the employer’s preliminary objection to his jurisdiction to hear the grievance. On judicial review, the Superior Court held that the arbitrators had exclusive jurisdiction over the grievances. The Court of Appeal set aside that decision. It rejected the implicit incorporation argument and concluded that the C.R.T. has exclusive jurisdiction to decide a wrongful dismissal complaint.
Held (McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. dissenting): The appeals should be allowed.
Per LeBel, Fish, Abella, Charron and Cromwell JJ.: The implicit incorporation argument is not consistent with the words of the A.L.S. and disregards the drafting techniques used by the Quebec legislature when it intends to incorporate a specific standard into collective agreements or individual contracts of employment. If 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 expressly. The status of the A.L.S. as a statute of public order must be considered from the perspective of how the hierarchy of relevant sources of labour law affects the content and implementation of collective agreements, not from that of the implicit incorporation argument. The arbitrator considering a dismissal grievance must determine, in light of the modifications to the collective agreement that flow from the public order status of the A.L.S., whether he or she has the power under that agreement to grant the dismissed employee a remedial measure equivalent to the one available under s. 124 A.L.S. If the answer to this question is no, the arbitrator lacks jurisdiction and must decline it in favour of the C.R.T. In addition to ensuring recognition of the arbitrator’s jurisdiction, this approach enables the arbitrator to review the situation in the context of the entire collective agreement and to consider all relevant factors in analysing the equivalence of the recourse. It is also consistent with the alternative nature of the recourse before the C.R.T., since the C.R.T. will hear a complaint only if the arbitrator who has initial jurisdiction to interpret the agreement determines that he or she cannot offer the employee a recourse equivalent to the one available through the C.R.T.
C and L were credited with two years of uninterrupted service within the meaning of the A.L.S. and could not, therefore, as a result of s. 124, be dismissed without good and sufficient cause. Because the clauses of the collective agreement applicable respectively to C and L denied the employees access to grievance arbitration to contest their dismissal, they are inconsistent with the substantive standard in s. 124 A.L.S., are absolutely null and are therefore deemed unwritten. The arbitrator considering the grievance must therefore examine the collective agreement to determine whether the agreement grants a recourse equivalent to the one available under s. 124. To conclude that the recourses are equivalent, both decision‑makers must have the power to review the employer’s decision and order appropriate remedies within a procedural framework of comparable effectiveness. In these appeals, the C.R.T. can overturn the dismissal, order the employee’s reinstatement or fix indemnities. Since the grievance arbitrator acts under the collective agreement 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. As a result, the arbitrators had jurisdiction to hear the grievances of C and L, consider the merits of the decisions to dismiss them and take appropriate remedial action.
Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. (dissenting): There is no rule conferring exclusive jurisdiction to resolve disputes between unionized employees and their employers on grievance arbitrators. Rather, it is necessary in each case to interpret the relevant legislation and consider the nature of the dispute in order to determine whether the arbitrator’s jurisdiction is exclusive.
Where the applicable legislative scheme is concerned, there is nothing to indicate that the legislature believed the various forms of protection provided for in the A.L.S. were implicitly incorporated into all collective agreements. For the application of s. 124 A.L.S., it designated a forum in the Act for cases in which the agreement negotiated by the parties does not provide for one. Neither the A.L.S. nor the Labour Code provides support for a conclusion that s. 124 is incorporated into the collective agreement. Respect for the arbitration procedure does not lead to the conclusion that the procedure is of public order. The legislature has given unions a monopoly on representation, but it may also designate a forum other than an arbitrator where it considers it appropriate to do so. Given that the A.L.S. is of public order, a collective agreement may not contain standards that are prohibited by the A.L.S. or are inferior to standards established in it. An employer may not dismiss an employee without good and sufficient cause if the employee is credited with at least two years of uninterrupted service within the meaning of the A.L.S. However, there is no requirement that the parties confer responsibility for the enforcement of this protection on a grievance arbitrator. Thus, a collective agreement could not provide that the employer may, at will, dismiss a person who has two years of uninterrupted service. Although any provision to that effect would be found to be null, this does not mean that the standard established in the A.L.S. is incorporated into the collective agreement. Arbitrators are bound by the collective agreement and the Labour Code, and in particular by s. 100.12(a), which provides that they may “interpret and apply any Act or regulation to the extent necessary to settle a grievance”. This jurisdiction presupposes that the grievance is based on the collective agreement. The provisions conferring jurisdiction on grievance arbitrators and the C.R.T. are both found in the Labour Code. If the procedure applicable to all unionized employees wishing to avail themselves of s. 124 A.L.S. were the one provided for in their collective agreement, the legislature would have said so clearly. It instead gave the parties the freedom to include this procedure in their agreement, although in so doing it made sure that no employee would be without a recourse.
Nor does the nature of the dispute indicate that it is within the exclusive jurisdiction of the grievance arbitrator. Both the arbitrator and the C.R.T. have recognized expertise with respect to dismissal complaints. Not only is the C.R.T. the exclusive alternative forum designated in the A.L.S., but an analysis of how it is set up also confirms that its expertise in deciding whether there is good and sufficient cause for the dismissal of an employee cannot be denied.
In these appeals, the clauses of the collective agreement that limit access to the grievance procedure are not contrary to public order, as they do not deprive C and L of the protection provided for in s. 124 A.L.S. Limiting access to the grievance procedure is not prohibited by either the A.L.S. or the Labour Code. The parties have not generally incorporated the standards established in the A.L.S. into their collective agreement. There is no provision in the A.L.S. to the effect that the collective agreement must make the grievance procedure available in respect of all the standards established in that statute. Rather, the A.L.S. establishes a recourse for cases in which the agreement does not provide for one. Because of restrictions on the arbitration procedure, C and L do not have an adequate remedial procedure within the meaning of s. 124 A.L.S. The C.R.T. is therefore the appropriate forum to settle their wrongful dismissal complaints.
The role of the courts is to interpret legislation in a manner consistent with its purpose. The A.L.S. was enacted to protect employees. Pursuant to the interpretation adopted here, there is a simple way to achieve that purpose — by referring to the words used and avoiding artificial disputes. The A.L.S. has borrowed from the collective bargaining scheme by including a type of protection found in many collective agreements. There is no justification for holding now that every collective agreement must include that protection. The exception made for cases in which collective agreements afford adequate protection reflects this historical reality. There is no defect in the Labour Code or in the A.L.S. or collective agreements that needs to be cured by judicial interpretation. Moreover, the A.L.S. is already a legislative work in progress. It would be inappropriate to accept an interpretation whose effect would be to create weaknesses in a structure that has been built following lengthy debate. The legislature is free to step in to provide for new recourses in respect both of s. 124 A.L.S. and of the other standards. It alone has the authority to do so.
Cases Cited
By LeBel J.
Referred to: Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261; Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Barnier, [1980] 1 S.C.R. 1124; Commission des normes du travail v. Chantiers Davie Ltée, [1987] R.J.Q. 1949.
By Deschamps J. (dissenting)
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261; Ateliers Roland Gingras inc. v. Martin, [1988] R.J.Q. 523; Giguère v. Cie Kenworth du Canada, Division de Paccar du Canada Ltée, [1990] R.J.Q. 2485; Malo v. Côté‑Desbiolles, [1995] R.J.Q. 1686; Joyal v. Hôpital du Christ‑Roi, [1997] R.J.Q. 38; Commission scolaire Chomedey de Laval v. Dubé, [1997] R.J.Q. 1203; Université du Québec à Hull v. Lalonde, 2000 CanLII 11322; Dubé v. Secrétariat de l’Action Catholique de Joliette, 2001 CanLII 12979; Beauséjour
v. Lefebvre, [1986] R.J.Q. 1407, aff’d [1988] R.J.Q. 639; Syndicat du personnel enseignant du Centre d’études collégiales en Charlevoix v. St‑Laurent, 2007 QCCS 1005 (CanLII); Commission des normes du travail v. Chantiers Davie Ltée, [1987] R.J.Q. 1949; Commission des normes du travail v. Campeau Corp., [1989] R.J.Q. 2108; Commission des normes du travail v. Hawker Siddeley Canada inc., [1989] R.J.Q. 2123; Commission des normes du travail v. Domtar Inc., [1989] R.J.Q. 2130; Québec (Commission des normes du travail) v. Cie minière I.O.C. inc., 1995 CanLII 5324; Commission des normes du travail v. Cie de papier de St‑Raymond ltée, [1997] R.J.Q. 366; Syndicat des employé(es) de soutien du Cégep André‑Laurendeau v. Lavoie, 2007 QCCS 322 (CanLII); Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 503 v. Roy, 2007 QCCS 1172 (CanLII); Balthazard‑Généreux v. Collège Montmorency, [1997] T.T. 118; Lecavalier v. Montréal (Ville), [1997] D.T.T.Q. No. 14 (QL); Robitaille v. Société des alcools du Québec, [1997] T.T. 597; Calcuttawala v. Conseil du Québec — Unite Here, [2006] R.J.D.T. 1472; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; McLeod v. Egan, [1975] 1 S.C.R. 517; Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27.
Statutes and Regulations Cited
Act respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001, ss. 32, 369.
Act respecting labour standards, R.S.Q., c. N‑1.1, ss. 1 “agreement”, “employee”, “uninterrupted service”, 81.18, 81.19, 81.20, 93, 94, 102, 122, 123, 123.4, 123.7, 123.13, 123.15, 123.16, 124, 125, 126, 126.1, 127, 128.
Act respecting labour standards, S.Q. 1979, c. 45, s. 126.
Act respecting occupational health and safety, R.S.Q., c. S‑2.1.
Act to amend the Act respecting labour standards, S.Q. 1997, c. 2, s. 2.
Act to amend the Act respecting labour standards and other legislative provisions, S.Q. 1990, c. 73, s. 61.
Act to amend the Labour Code, to establish the Commission des relations du travail and to amend other legislative provisions, S.Q. 2001, c. 26, s. 144.
Charter of human rights and freedoms, R.S.Q., c. C‑12.
Civil Code of Québec, S.Q. 1991, c. 64, art. 1438.
Employment Standards Act, R.S.O. 1990, c. E.14, ss. 64.5(1), (2), (3), (4).
Employment Standards Act, 1968, S.O. 1968, c. 35.
Labour Code, R.S.Q., c. C‑27, ss. 1(f) “grievance”, 16, 17, 62, 64, 100, 100.12(a), (f), 114, 118, 137.12, Sch. I, s. 15.
Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 48(1), (12)(j).
Minimum Wage Act, R.S.Q., c. S‑1.
Minimum Wage Act, R.S.Q. 1941, c. 164.
Pay Equity Act, R.S.Q., c. E‑12.001.
Women’s Minimum Wage Act, R.S.Q. 1925, c. 100.
Authors Cited
Côté, Pierre‑André, avec la collaboration de Stéphane Beaulac et Mathieu Devinat. Interprétation des lois, 4e éd. Montréal: Thémis, 2009.
Dubé, Jean‑Louis, et Nicola Di Iorio. Les normes du travail, 2e éd. Sherbrooke: Revue de droit Université de Sherbrooke, 1992.
Gagnon, Robert P. Le droit du travail du Québec, 6e éd. Cowansville, Qué.: Yvon Blais, 2008.
Hébert, Gérard, et Gilles Trudeau. Les normes minimales du travail au Canada et au Québec: Étude juridique et institutionnelle. Cowansville, Qué.: Yvon Blais, 1987.
Morin, Fernand, Jean‑Yves Brière et Dominic Roux. Le droit de l’emploi au Québec, 3e éd. Montréal: Wilson & Lafleur, 2006.
Québec. Assemblée nationale. Journal des débats, 2e sess., 35e lég., 23 mai 1996, p. 1325, 1332, 1334.
Vallée, Guylaine. “Les lois de l’emploi et la convention collective”, dans Dominic Roux et Anne‑Marie Laflamme, dir., Rapports hiérarchiques ou anarchiques des règles en droit du travail: Chartes, normes d’ordre public, convention collective, contrat de travail, etc.: Actes du colloque tenu à l’Université Laval/8 novembre 2007. Montréal: Wilson & Lafleur, 2008, 81.
APPEAL from a judgment of the Quebec Court of Appeal (Baudouin, Morin and Rochon JJ.A.), 2008 QCCA 1046, [2008] J.Q. no 4944 (QL), 2008 CarswellQue 4906, reversing a decision of Fraiberg J., 2006 QCCS 5230, [2006] R.J.D.T. 1400, [2006] J.Q. no 14258 (QL), 2006 CarswellQue 9642, dismissing an application for judicial review of an arbitrator’s decision. Appeal allowed, McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. dissenting.
APPEAL from a judgment of the Quebec Court of Appeal (Baudouin, Morin and Rochon JJ.A.), 2008 QCCA 1054, [2008] R.J.D.T. 1005, [2008] J.Q. no 4945 (QL), 2008 CarswellQue 4906, reversing a decision of Fraiberg J., 2006 QCCS 5230, [2006] R.J.D.T. 1400, [2006] J.Q. no 14258 (QL), 2006 CarswellQue 9642, allowing an application for judicial review of an arbitrator’s decision. Appeal allowed, McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. dissenting.
Pierre Brun and Sophie Cloutier, for the appellant.
Michel Déom, for the respondent.
Robert L. Rivest and Dalia Gesualdi‑Fecteau, for the intervener Commission des normes du travail.
Gérard Notebaert and Isabelle Lacas, for the intervener Confédération des syndicats nationaux.
English version of the judgment of LeBel, Fish, Abella, Charron and Cromwell JJ. delivered by
LeBel J. —
I. Introduction
A. Nature of the Cases
[1] This Court has before it two appeals by the Syndicat de la fonction publique du Québec (“S.F.P.Q.”), which represents two employees of the Quebec government covered by a collective agreement between the S.F.P.Q. and the government. Those employees no longer work for the Quebec government. They and the S.F.P.Q. are challenging the termination of their employment on the basis that they were not dismissed for a good and sufficient cause. It is common ground that the employees were entitled to present their unlawful dismissal complaints to a neutral outside decision‑maker. The issue is whether a grievance arbitrator designated under the collective agreement or the Commission des relations du travail (“C.R.T.”) has jurisdiction to hear a complaint in relation to the rights conferred on employees in s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1 (“A.L.S.”). The appellant argues that the arbitrator has this jurisdiction. The respondent submits that jurisdiction over these cases lies with the C.R.T. In addition to the issue of the choice of forum, these appeals raise the more general issue of how the A.L.S., as a statute of public order, affects the content of collective agreements.
B. Solution
[2] In my opinion, the grievance arbitrator must be held to have jurisdiction over the complaint for the purpose of determining whether the grievance and arbitration procedure set out in the collective agreement is equivalent to the recourse provided for in s. 124 A.L.S. This is because of the effect of the A.L.S., as a statute of public order, on the content of collective agreements entered into under the Labour Code, R.S.Q., c. C‑27 (“L.C.”). If the grievance and arbitration procedure is equivalent, the arbitrator must hear the grievance. If it is not, the grievance must be referred to the C.R.T. For the reasons that follow, I would find that, in the instant cases, the arbitrators had jurisdiction to hear the grievances. I would therefore allow both appeals and restore the judgment of the Quebec Superior Court.
II. Origins of the Cases
A. The Collective Agreement
[3] These appeals arise out of a disagreement over the application of the collective agreement for government employees for 1998‑2002 between the Quebec government and the S.F.P.Q. One of the conditions of employment provided for in that agreement is that certain employees without job security may not, on being dismissed, grieve their dismissal before the designated grievance arbitrator except in special circumstances.
[4] Case 32771 concerns clause 4‑14.28 of the collective agreement, which provides that the agreement’s disciplinary provisions — including clause 4‑14.21, pursuant to which employees may grieve disciplinary action taken against them — do not apply to seasonal or casual employees unless they were hired for periods of one year or more or have, in the case of casual employees, at least 12 months of service. No other recourse is provided for as regards employees to whom the grievance procedure is not available.
[5] Case 32772 concerns clause 5‑17.04 of the agreement, which provides that an employee dismissed during or at the end of a probationary period may not grieve the dismissal. That clause reads as follows:
[translation] 5‑17.04 A decision by the Deputy Minister to terminate the employment of a temporary employee during or at the end of the probationary period provided for in section 13 of the Public Service Act or in the Directive concernant la classification des emplois de la fonction publique et sa gestion may not be grieved unless the purpose of the decision is to avoid the application of the second paragraph of this article.
However, following that probationary period, the Deputy Minister may lay off a temporary employee only because of a shortage of work, as a result of workforce reduction or under Chapter 6‑0.00.
Like any collective agreement, the agreement in issue here must be interpreted in light of the relevant provisions of the complex legislative scheme governing labour relations in Quebec.
B. The Legislative Framework
[6] The Quebec legislature has created an extensive legislative framework for labour relations in that province to take account of the fact that employees are often in a vulnerable position in relation to their employers, and to establish a stable, orderly system of labour relations. As is the case elsewhere in Canada, that framework is set out in a number of statutes that govern various aspects of individual and collective labour relations. The A.L.S., which lays down minimum conditions of employment, plays a particularly important role for both unionized and non‑unionized employees in Quebec. It represents the Quebec legislature’s most significant intervention in this area of labour relations and forms, together with the Act respecting occupational health and safety, R.S.Q., c. S‑2.1, the cornerstone of Quebec’s statutory employment law scheme (R. P. Gagnon, Le droit du travail du Québec (6th ed. 2008), at p. 143).
[7] The A.L.S. is designed to provide Quebec employees with a minimum level of protection to which the parties to an employment relationship may not make exceptions. It was enacted in 1979 with the objective of improving the existing protection — considered insufficient — afforded by labour legislation that was exclusively economic in nature, such as the Minimum Wage Act, R.S.Q., c. S‑1. Because of the functional imbalance inherent in the employee‑employer relationship, the pre‑A.L.S. statutes did not lead to the establishment of fair conditions of employment (F. Morin, J.‑Y. Brière and D. Roux, Le droit de l’emploi au Québec (3rd ed. 2006), at p. 52).
[8] The A.L.S., which is social legislation, establishes — in Chapter IV — a wide range of standards that constitute a minimum level of protection applicable to many aspects of employment, including the payment of wages, family or parental leave and the termination of employment. The recourses needed to ensure compliance with the standards established in the A.L.S. are provided for in Chapter V. To reflect changing societal attitudes in this area, the A.L.S. has been amended frequently. Certain changes have been made to the complaint system under s. 124 A.L.S., and the number of years of uninterrupted service employees must have in order to present complaints is no longer five, but two. The protection of s. 124 is what the appellants are invoking in the instant cases.
[9] Section 124 A.L.S. gives employees who have completed two years of uninterrupted service in the same enterprise a recourse they can exercise if they are dismissed without good and sufficient cause:
124. An employee credited with two years of uninterrupted service in the same enterprise who believes that he has not been dismissed for a good and sufficient cause may present his complaint in writing to the Commission des normes du travail 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 a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement.
If the complaint is filed with the Commission des relations du travail within this period, failure to have presented it to the Commission des normes du travail cannot be set up against the complainant.
[10] In Produits Pétro‑Canada Inc. v. Moalli, [1987] R.J.Q. 261, the Quebec Court of Appeal considered the nature of the rights established in s. 124 A.L.S. and recognized that the section has a normative duality. Although 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.
[11] The A.L.S. also establishes a recourse that employees can exercise in the event of a failure to comply with the substantive standard. That recourse, originally exercised before an arbitrator, then before a labour commissioner and now before the C.R.T. (Morin, Brière and Roux, at p. 1293), allows a dismissed employee to obtain specific performance of the employer’s obligation by being reinstated in the workplace or receiving equivalent monetary compensation. However, the recourse remains alternative in nature, since it can be exercised before the C.R.T. only where an equivalent remedial procedure is not provided for elsewhere in the A.L.S., in another Act or in an agreement, including a collective agreement. Insofar as the Quebec legislature accepts that an authority other than the one mentioned in s. 124 A.L.S. may have jurisdiction to rule on compliance with the labour standard established by that section, the procedural and substantive aspects of s. 124 can be considered severable from one another.
[12] Collective agreements are governed, first and foremost, by the L.C., which, except in certain specific sectors, provides the exclusive framework for organizing collective labour relations (Morin, Brière and Roux, at p. 808). In particular, it contains the legal rules that govern the establishment of conditions of employment by employees and employers through collective bargaining, and it ensures the application of the resulting collective agreements by establishing mandatory grievance and arbitration procedures (Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27, at para. 93). The first paragraph of s. 100 L.C. provides that every grievance arising out of the application of a collective agreement must be submitted to a grievance arbitrator:
100. Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator chosen by the parties or, failing agreement, appointed by the Minister.
[13] Arbitrators also have the power — under s. 100.12 L.C. — to interpret and apply any Act or regulation if necessary to settle a grievance. Statutes of public order, such as the A.L.S., are binding on arbitrators, who are required to take them into account in carrying out their mandates. Under s. 62 L.C., provisions of a collective agreement that are contrary to public order or prohibited by law are null.
[14] This, then, is the legislative context of the employees’ grievances in the instant cases.
C. The Grievances, the Bases for the Grievances and the Employers’ Objections
[15] In case 32771, the S.F.P.Q. challenged the dismissal of Claude Mireault, a casual employee of Pépinière forestière de Berthier, an organization that comes under the authority of Quebec’s Ministère des Ressources naturelles, de la Faune et des Parcs. According to the evidence accepted by the grievance arbitrator, Maureen Flynn, five grounds were raised for the decision to dismiss Mr. Mireault: an unsatisfactory appraisal of his work, his negative leadership style as it affected both his performance and how the other employees viewed the organization, his misogynistic attitude, and the fact that some employees were afraid of him. At the time of his dismissal, Mr. Mireault had completed 188 days of service between April 23, 2001 and December 2, 2003, or fewer than the 260 days of service needed, as negotiated by the parties, to avail oneself of art. 4‑14.21 of the collective agreement. However, he argued that he had completed the two years of uninterrupted service required by s. 124 A.L.S. On that basis, he sought to have his dismissal overturned, and claimed all the rights and benefits provided for in the collective agreement that applied to him.
[16] In case 32772, the S.F.P.Q. contested the dismissal of Lahcene Messaoudan, a probationary employee of Quebec’s Ministère du Revenu. Mr. Messaoudan’s employer alleged that he had worked [translation] “illegally” by preparing tax returns for individuals and businesses in exchange for remuneration, that he had consulted the department’s files and used its equipment for purposes unrelated to his work, and that he had lied to his employer. Mr. Messaoudan claimed to have been constructively dismissed, and he sought immediate reinstatement and payment of the related wages and benefits, plus interest, since the date of his dismissal. Like Mr. Mireault, he submitted that he had completed the two years of uninterrupted service required by s. 124 A.L.S. and that he was therefore entitled to contest his dismissal despite the fact that he was a probationary employee.
[17] As I mentioned above, the collective agreement for Quebec government employees provides that seasonal and casual employees hired for periods of less than one year, and probationary employees, may not grieve their dismissal before the designated grievance arbitrator. Mr. Mireault and Mr. Messaoudan both fell within one of those classes of employees. As a preliminary matter in each of their cases, therefore, the employer challenged the arbitrator’s jurisdiction to hear the grievances filed by the union. The union countered that the substantive labour standard in s. 124 A.L.S. is implicitly incorporated into every collective agreement and that the arbitrators therefore had the necessary jurisdiction to dispose of the grievances.
III. Judicial History
A. Arbitration Tribunal
(1) Case 32771
[18] Arbitrator Maureen Flynn accepted the S.F.P.Q.’s argument that because the A.L.S. is a statute of public order, the substantive standard established in s. 124 A.L.S. is incorporated into the collective agreement. She therefore dismissed the employer’s preliminary objection and concluded that she had jurisdiction to hear Mr. Mireault’s grievance. On the merits, she found that the employer had not shown that Mr. Mireault had done anything serious enough to warrant dismissing him without first applying the principle of progressive discipline. She accordingly allowed the grievance and held that Mr. Mireault had been wrongfully dismissed: [2006] R.J.D.T. 329.
(2) Case 32772
[19] Arbitrator Pierre Laplante upheld the employer’s preliminary objection to his jurisdiction to hear Mr. Messaoudan’s grievance. After finding that the parties’ intention that temporary employees who are on probation should not be entitled to challenge their dismissal before an arbitration tribunal was inconsistent with the standard in s. 124 A.L.S., Arbitrator Laplante concluded that s. 124 A.L.S. was not incorporated into the collective agreement. He therefore held that he had no jurisdiction to hear the grievance: D.T.E. 2006T‑473, SOQUIJ AZ‑50370564.
B. Quebec Superior Court
[20] On judicial review of the two arbitrators’ decisions, Fraiberg J. adopted Arbitrator Flynn’s reasoning and held that the arbitrators had exclusive jurisdiction over the disciplinary grievances. He accordingly dismissed the motion for judicial review in Mr. Mireault’s case and allowed the one in Mr. Messaoudan’s case: 2006 QCCS 5230, [2006] R.J.D.T. 1400.
C. Quebec Court of Appeal
[21] There were six appeals raising similar legal issues that the Court of Appeal heard together, including the two I am considering in these reasons.
[22] In reviewing the scope of s. 124 A.L.S., the Court of Appeal noted that the provision’s complexity — it contains both a labour standard and a procedural mechanism for implementing the standard — had been recognized in several decisions. A complaint under s. 124 A.L.S. can be presented only if no equivalent — that is to say, equally effective — remedial measure is provided for in an Act or an agreement. The Court of Appeal considered it clear that if s. 124 A.L.S. were implicitly incorporated into every collective agreement, the effect would be to truncate that provision significantly, as the exception to the C.R.T.’s jurisdiction to hear the complaint of an employee covered by a collective agreement would become superfluous.
[23] After examining the legislative scheme established by the A.L.S. and the L.C., the Court of Appeal rejected the argument that the legislation does not give the C.R.T. exclusive jurisdiction. In its view, the complaint in question in s. 126 A.L.S. has to be the one filed under s. 124 A.L.S., over which the C.R.T. has exclusive jurisdiction pursuant to s. 114 L.C. The Court of Appeal pointed out that, in decisions concerning the jurisdiction of grievance arbitrators, the Supreme Court of Canada has stressed the fundamental importance, in such cases, of determining the legislature’s intention. In the cases at bar, the legislature did not choose to give a grievance arbitrator jurisdiction where an employee covered by a collective agreement presents a complaint under s. 124 A.L.S.; instead, it opted for a specialized tribunal, the C.R.T. Nor, the Court of Appeal stated, was there any indication that the C.R.T. had any difficulty carrying out its statutory mandate.
[24] For these reasons, the Court of Appeal allowed the appeals and set aside the judgment of the Superior Court. It accordingly found that the grievances of Mr. Mireault and Mr. Messaoudan were not properly before the arbitrator and dismissed them: 2008 QCCA 1046 (CanLII) and 2008 QCCA 1054, [2008] R.J.D.T. 1005.
IV. Analysis
A. Issue
[25] The parties are asking this Court to determine whether the substantive standard of public order set out in s. 124 A.L.S., which prohibits the dismissal without good and sufficient cause of an employee who has two years of uninterrupted service, is implicitly included in every collective agreement. In my view, 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 C.R.T. 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.
B. Arguments of the Parties
(1) Union’s Arguments
[26] The S.F.P.Q. argues, relying mainly on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, that the substantive standard established in s. 124 A.L.S. is implicitly incorporated into every collective agreement.
[27] The S.F.P.Q. submits that the principle of implicit incorporation of basic legal rules established in Parry Sound is not limited to the area of human rights, but also applies to the minimum labour standards established in various Canadian statutes. Where such standards are so incorporated, the grievance arbitrator remains the appropriate decision‑maker except where it is clear from the legislation and from the legislature’s intention that the application and implementation of a standard has been conferred exclusively on another authority and that the matter is therefore excluded from the arbitrator’s usual jurisdiction. The parties may not enter into an agreement that bypasses or eliminates the right to the recourse provided for in s. 124 A.L.S.; the legislature’s intention to grant the recourse to all employees, whether unionized or not, is a matter of directive public order. However, the implicit incorporation of s. 124 in no way affects the validity of a clause of a collective agreement that denies or limits the right to grieve in the case of certain employees without job security to whom the standard established in s. 124 A.L.S. does not apply.
[28] According to the appellant, the labour standard established in s. 124 A.L.S. can be severed from t