Syndicat des professeurs du Cégep de Ste-Foy v. Quebec (Attorney General)

LeBel J. — In this case, the appellants raise the fact that, as provided for in clause 5‑1.09 of the collective agreement between the Fédération des enseignantes et enseignants de Cégep FEC (CEQ) and the Comité patronal de négociation des collèges (CPNC), certain classes of teachers are precluded from grieving decisions not to grant them employment priority. That clause is one of a complex set of provisions relating to job security in Quebec’s college education sector.

As I explain in my reasons in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61, I cannot accept the argument that the standard established in s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1, is incorporated into the collective agreement. If the clause in issue is viewed in the context of the agreement as a whole, it cannot be found to be contrary to public order. The clause concerns a specific type of termination of the employment relationship. It would be best to interpret and apply this provision without engaging prematurely in a theoretical debate about whether it is equivalent to the standard established in s. 124.

For these reasons, I would dismiss the appeal without costs.

English version of the reasons of McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. delivered by

Deschamps J. — This appeal raises the same issue as Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61 (“S.F.P.Q.”), and Syndicat des professeurs et des professeures de l’Université du Québec à Trois‑Rivières v. Université du Québec à Trois‑Rivières, 2010 SCC 30, [2010] 2 S.C.R. 132. The Court must determine whether s. 124 of the Act respecting labour standards, R.S.Q., c. N‑1.1 (“A.L.S.”), is incorporated into the collective agreement and can therefore be applied by a grievance arbitrator. The first paragraph of s. 124 reads as follows:

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.

The applicable principles are explained in S.F.P.Q., in which I conclude that although s. 124 is a provision of public order, this does not mean that only an arbitrator has jurisdiction to enforce the protection against dismissal without good and sufficient cause in a collective bargaining context. Where no adequate procedure is provided for in the collective agreement, the legislature has conferred exclusive jurisdiction to hear complaints against such dismissals on the Commission des relations du travail (“C.R.T.”).

The provisions of the collective agreement between the parties to this appeal differ from those that apply in S.F.P.Q.

The relevant facts are as follows. In December 2001, the respondent employer, the Cégep de Ste‑Foy, withdrew employment priority from Alain Prévost, a teacher. The appellant Syndicat des professeurs du Cégep de Ste‑Foy (“union”) grieved that decision, relying on a clause of 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. Clause 5‑1.09 of the agreement reads as follows:

[translation] A decision not to grant a non‑permanent teacher the employment priority provided for in clauses 5‑4.17, 8‑6.03 and 8‑7.01 may be grieved only if the teacher has held a full‑time position at the college for two (2) years or has accumulated three (3) or more years of seniority at the college for the purposes of the provisions relating to job security; in such a case, the college must prove that there was a reasonable basis for its decision. [Emphasis added.]

At the arbitration hearing, however, the union asked the arbitrator to find that clause 5‑1.09 was inapplicable in light of s. 62 of the Labour Code, R.S.Q., c. C‑27, and ss. 93 and 124 A.L.S. According to the union, since the withdrawal of employment priority constituted dismissal, the applicable legal requirement, as provided for in s. 124 A.L.S., was that there be a good and sufficient cause.

The employer argued that the withdrawal of employment priority did not constitute dismissal. It disputed the argument that clause 5‑1.09 was contrary to public order, since the recourse in s. 124 A.L.S. continued to be available. In its view, clause 5‑1.09 was not a recourse equivalent to the one in s. 124, and the arbitrator did not have jurisdiction to apply s. 124. The employer argued that only the C.R.T. had jurisdiction to apply s. 124 in this case.

After hearing the parties, Arbitrator Francine Beaulieu found that there had been a reasonable basis, within the meaning of clause 5‑1.09 of the collective agreement, for the withdrawal of employment priority. She then considered whether she had jurisdiction to apply s. 124 A.L.S. She found that, in reality, the withdrawal of employment priority could be equated with dismissal. She held that she had the power to consider any Act to the extent necessary to settle a grievance, but she concluded that she did not have jurisdiction to apply s. 124 A.L.S. because the collective agreement provided for no [translation] “other 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 A.L.S.]”. According to the arbitrator, “to decide otherwise would be to contradict the legislature’s choice to confer exclusive jurisdiction on the [C.R.T.] in such matters”.

2.2 Judgment of the Superior Court

Lesage J. dismissed the motion for judicial review: 2007 QCCS 1191 (CanLII). Although he found that clause 5‑1.09 of the collective agreement had nothing to do with the dismissal of a teacher but instead governed the withdrawal of employment priority, he took note of the arbitrator’s finding that, [translation] “in reality”, the withdrawal of employment priority amounted to dismissal (para. 21). Lesage J. held that the arbitrator had correctly decided that she lacked jurisdiction to apply the standard established in s. 124 A.L.S. because no equivalent procedure was provided for in the collective agreement. He therefore concluded that pursuant to s. 114 of and Schedule I to the Labour Code, the C.R.T. had exclusive jurisdiction to decide the complaint.

For the reasons it gave in Québec (Procureur général) v. Syndicat de la fonction publique du Québec, 2008 QCCA 1054, [2008] R.J.D.T. 1005, the Court of Appeal dismissed the appeal: 2008 QCCA 1057 (CanLII).

In this Court, the parties reiterate the arguments raised in S.F.P.Q. The employer also argues that the withdrawal of employment priority does not have the effect of terminating employment, and that the mechanism provided for in clause 5‑1.09 is not an appropriate procedure for presenting a complaint of dismissal without good and sufficient cause.

In S.F.P.Q., I explain that a collective agreement can contain a provision that adequately protects employees with two years of uninterrupted service from being dismissed without good and sufficient cause. Where that is the case, the arbitrator will apply the provisions of the collective agreement. What is involved in such a case is not implicit incorporation of the legislative standard, since the protection is already provided for in the agreement. Where an agreement does not contain a provision that protects employees adequately, the C.R.T. is the exclusive forum for hearing complaints presented by employees who allege that they have been dismissed without good and sufficient cause.

In this appeal, the parties have focussed on the question whether s. 124 A.L.S. is implicitly incorporated into the collective agreement. The union does not dispute the arbitrator’s conclusion that the standard provided for in clause 5‑1.09 for reviewing the employer’s decision is not the same as the standard established in s. 124 A.L.S. The employer vigorously supports that conclusion. Since the parties have focussed more on the theoretical question than on the application of clause 5‑1.09 of the collective agreement, it is not appropriate in this case to discuss the wording of that clause. However, in future cases, the clauses of the collective agreement should be reviewed by flexibly applying the criteria adopted by the courts for determining whether the arbitrator or the C.R.T. has jurisdiction. Those criteria are as follows: