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Work, Lockdown and Curfew: Answers to Your Questions
In order to reduce community transmission and preserve everyone’s safety and that of our healthcare system, the government requires everyone to make extra efforts, both in their private lives and at work. The closure of retail businesses, save for some exceptions, is maintained, the lockdown to prevent gatherings continues and a curfew was added on January 9, 2021, to remain in effect until the currently announced date of February 8, 20211. How can employers review their work organization to the extent possible for them while complying with government guidelines? Here are a few questions and answers to clarify the situation. With the curfew in effect, do I need to review my work organization and schedules if my activities are not suspended or prohibited? If you operate an essential retail business, you are required to review your employees’ schedules and work hours in order to abide by the curfew and allow your employees to leave your business no later than 7:30 p.m. in order to be home by 8 p.m. Companies in the construction, manufacturing and primary processing industries must reduce their activities “to pursue only those activities necessary to fulfil their commitments” (our translation): To properly measure the scope of this requirement, the guidelines and directives issued by the authorities (including CNESST) must be closely followed. However, on the basis of this statement in the Decree adopted on the evening of January 8, 2021, in order to be able to demonstrate the steps taken to comply with directives, companies should review confirmed contracts and orders, agreed-upon delivery dates and inherent production delays to modify work planning (e.g. priority orders to be delivered by February 8, 2021, staff work days and hours, evening and night shifts). In its online communications, the Government of Quebec asks not only that activities be reduced to a minimum to complete commitments, but also that shifts be adjusted to limit the staff present at any time on production and construction sites. Businesses in this situation may require special negotiations to make the necessary adjustments given working conditions, policies or collective agreements in place. When should I consider temporary layoffs due to a reduction in my activities as a result of the increased lockdown or curfew? Subject to the provisions of a collective agreement or employment contract (e.g. guaranteed hours of work), an employer may consider reorganizing work and allocating working hours among employees by coming to an agreement on temporary working conditions with them to avoid layoffs. If such an agreement is not possible for legal, organizational or efficiency reasons, layoffs may be considered: With confirmation of the layoffs as being related to COVID-19, in which case concerned employees can verify their eligibility for the Canada Recovery Benefit or EI benefits depending on the circumstances. An employer should also document the reasons behind temporary layoffs and, for example, in its determination of who is affected according to the organization’s applicable criteria, for recall purposes and analysis of whether or not extending such layoffs is necessary. How do I protect my essential employees who would have to travel during curfew to get to work or return home? For each employee required to travel during the 8 p.m. to 5 a.m. curfew, the employer must prepare an explanatory letter (attestation letter) as evidence that the employer’s activities are authorized under the applicable directives and that the employee’s work is essential to carrying out authorized activities (this includes transporting goods required for such activities). The attestation letter must include information that could reasonably lead the police to conclude that the employee is allowed to travel during the curfew because that employee qualifies for one of the exceptions provided by the government. Exceptions are known to be interpreted restrictively. On the basis of the form letter issued by the government and the purpose of the attestation letter, this letter should include information such as: The name of the employer and its authorized representative (with letterhead confirming the company’s contact information, including its website). The nature of the employer’s activities. The employee’s duties, home address and work contact information. The employee’s work schedule. The contact information and telephone number of the person available between 8 p.m. and 5 a.m. to provide details to police officers who may stop the employee (this person must be familiar with the employer’s authorized activities involving the employee as well as the employee’s position and schedule). The validity period of the attestation and its date of signature. I operate a retail business that is not identified as an authorized priority business since December 25, 2020. Can I operate and sell goods online and how can my customers retrieve their purchases? E-commerce is allowed, even for non-essential goods (sales can also be completed by phone). The key points: Telework should be maximized as much as possible, with physical presence being limited to only those employees whose presence is essential to the workplace. Goods can be delivered or picked up at the door without entering a store. Payment must be made by telephone if a sale is made in this way and without the customer entering the business. We will follow developments and keep you informed as it is important to keep track of possible—and often frequent changes and adjustments brought to the directives. The professionals of our Labour and Employment team are available to advise you and answer your questions. See https://www.quebec.ca/en/health/health-issues/a-z/2019-coronavirus/confinement-in-quebec/ and the January 8, 2021, Order in Council 2-2021 Ordering of measures to protect the health of the population amid the COVID-19 pandemic situation.
COVID-19 and Telework: A Common HR Solution but not Without Risk!
Due to the ongoing pandemic and the resulting suspension of many company activities, certain employers are maintaining their operations by means of telework. Employers have had to swiftly redeploy their human resources to an extent that would have been unimaginable just a few weeks ago. The redeployment of resources now working from home was done in a time of crisis, without the benefit of advanced planning, training, and strategic evaluation that usually accompanies changes of this magnitude. With no prediction yet available on how long the current crisis will last, employers must take steps now to ensure that the measures implemented to promote the continuity of their operations do not result in negative consequences, disputes or claims from their employees, clients or partners. In Quebec, thousands of employees are currently using new technological tools in a new environment (their homes), often without supervision. The boundary between private life and work has never been more blurred. The magnitude of the current context can artificially obscure the importance of employers adapting their operational methods and associated human resource policies to avoid the risks associated with working remotely. Employers must remember that legal action could be taken after the crisis to address any problematic situations in play now. It is important to act now in order to avoid exposure to significant liability in a post-Covid environment. To that end, we have identified the following four areas of concern. These have been highlighted so that employers can take any required measures to ensure that the telework performed is not only appropriate and safe, but also of sufficient quality to satisfy client and company needs: Concerns Related to Health and Safety while at Work The employer’s obligations in terms of health and safety and its responsibility to take preventive measures continue during this period of telework; The idea that the workplace can include the employee’s home must be taken into account, as well as associated workstation ergonomics Concerns Related to Psychological and Sexual Harassment The need to preserve civility while using new methods of communication; The feeling of familiarity engendered by these new methods of communication can be fertile ground for misconduct or a failure to engage in proper teamwork; The employer’s legal responsibility to prevent and address psychological and sexual harassment situations; Events that occur outside the usual workplace and are related to work; The application and adaptation of administrative policies and codes of conduct; Reviewing complaint and inquiry procedures so that they can take place outside of the usual workplace. Concerns related to the Act Respecting Labour Standards1 Respecting and modifying work schedules; Managing overtime; Costs associated with working from home; Concerns related to Privacy and Confidentiality The contractual performance of work in the employee's home; Transporting and storing work documents; Setting up a workspace to ensure that documents are kept confidential and ethical obligations are respected ; Our Labour and Employment team will be happy to help you implement best practices for telework. Act respecting labour standards, chapter N-1.1.
COVID-19 - Flexibility in the Federal Work-Sharing Program: A Solution for Retaining Your Human Capital?
In order to best support our clients and business partners, our team is following developments related to COVID-19 very closely. We invite you to visit on our website the page that centralizes all of the tools and information produced by our professionals. There is a concern that simply laying off employees could lead to companies experiencing a major loss of expertise and skill. This expertise will be essential to rebuilding after the end of the crisis, a time that for many will be the greatest challenge in the history of their organization. Organizations recognize that employees have value over and above their skills. They have acquired an in-depth understanding of the company’s goals and operations. They have established a relationship of trust with the company, a network of contacts, and a certain degree of autonomy, to name only a few examples. These make all the difference. We are working with many employers to identify solutions designed to protect this invaluable asset during this unprecedented crisis. The latest government announcements, which include provisions for increased wage subsidies for some companies, are certainly a positive response to current concerns and realities. Other programs with solutions that might be of interest include: New Flexibility in the Federal Work-Sharing Program The federal government has recently established measures to increase the flexibility of the Work-Sharing program (“WS”), which has been the subject of many questions from both employers and employees. Considering the frequent changes made to various government programs, it is possible that by the time you read this, some information may no longer be up to date. We therefore invite you to visit the Employment and Social Development Canada1 (“ESDC”) website or consult our labour and employment law professionals for more information. What is the Work-Sharing program (“WS”)? The goal of the program is to allow employers to keep all of their workers by reducing hours rather than laying off part of their workforce. This program may be a good option for employers who are facing a decrease in their normal level of operations due to COVID-19, but who still have some work for their employees in a reduced capacity. During the program’s implementation period, available work is redistributed equally among employees in one or more work units. The employer submits an application and fills out the form outlining the agreement between the employer, the affected employees and their representative, through which the employees voluntarily accept a reduction in their work hours and the sharing of available work. In order to compensate for this reduction in income, the program allows workers who are part of the agreement to receive employment insurance benefits. Under the Employment Insurance Regulations2, remuneration received for a given week of work-sharing is not deducted from the benefits payable under the Employment Insurance Act3. For companies that are directly or indirectly affected by the decline in business due to the current situation, the program’s duration is a minimum of six weeks and a maximum of 76 weeks. The reduction in employees’ regular work schedules must be between a minimum of 10% and a maximum of 60% on average during the period of the agreement. We invite you to visit the ESDC website or consult with our professionals to obtain more information about the eligibility criteria and the general requirements of the program. What Are the New Measures Related to COVID-19? On March 25, due to the downturn caused by COVID-19, the federal government updated its temporary special measures regarding the WS program, including the following, which: Reduce the requirements associated with preparing the application and the attachments. Starting now and until further notice, employers are no longer required to submit: The recovery plan, Attachment B, which used to be required, has been removed and replaced with a single line in the text of the application; Sales and/or production data from the last two years; Broaden program eligibility to include companies that have only been operating for a year, instead of the usual two years; Remove the required waiting period in between WS applications. How to Submit an Application and the Expected Processing Times Following the recent changes made to the program, there is now a simplified way to submit the application. Employers must fill out the following forms, which have been revised by the federal government: Revised form: Application for a Work-Sharing Agreement (EMP5100) Form - Attachment A (revised): Work-Sharing Unit (EMP5101) For businesses located in Quebec, the application must be sent to the following email address: [email protected] As of the date this bulletin was written, the ESDC website that provides information on the special measures implemented due to COVID-19 does not specify the amount of time it will take to process applications. However, it does indicate that employers are now asked to submit their applications 10 calendar days before the requested program start date, and that Service Canada will endeavour to reduce processing time to 10 calendar days. Before COVID-19, employers had to send their Work-Sharing application (and the supporting documents) 30 calendar days before the requested start date. Due to the major increase in applications, the federal government now has nine (9) processing centres in Canada for the purpose of processing WS applications and has the additional capacity to further support employers who have questions. A new email address has been created for the purpose of handling requests for information about the WS program: [email protected] Conclusion Considering the constant changes, we invite you to consult our labour and employment law professionals to ensure that your decisions are in conformity with the various government programs. The federal government may further increase the flexibility of the program’s conditions and wait times. If necessary, we will keep you informed of any changes to the program with future updates. It is also important to note that there are other kinds of programs that could be of interest in the current situation, such as the Supplemental Unemployment Benefit Program, which allows employers to increase their employees’ weekly earnings when they are unemployed due to a temporary stoppage of work or quarantine. If the conditions are met and the plan is registered with Service Canada, the amounts paid by the employer are not deducted from employees’ employment insurance benefits4. The Lavery team is available to help you implement measures and determine the best way to endure this crisis, protect your organization and prepare to return to normal. See also https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html#h4.01. Employment Insurance Regulations, DORS/96-332, subsection 47(1) and section 49. Employment Insurance Act, S.C. 1996, c. 23. Employment Insurance Regulations, supra note 1, subsection 37(1).
The Coronavirus Guide for Employers: Everyday Measures for the Workplace
Employers must review their action plan on a daily basis to promote prevention, manage possible or proven contagion among their employees and ensure that business operations continue. Two actions are key: Seeking accurate information from public health officials and governments daily; Taking this information into account when deciding how to meet your obligations to employees while maintaining operations. With the stated objective of containing the spread of the coronavirus, each of us is responsible for adapting our behaviours to an evolving set of circumstances, particularly in the workplace. This new reality impacts the responsibilities of employers. New Directives from The Government of Quebec On March 12, 2020, the province declared a state of emergency and the Quebec government announced the following: All persons returning from abroad or having flu- or cold-like symptoms must voluntarily self-isolate for 14 days; Self-isolation is mandatory and paid for all public service employees and all private and public healthcare, education and daycare workers returning from abroad; Organizations must cancel all indoor gatherings of more than 250 people and any unnecessary gatherings for the next 30 days1. At his press conference, the Premier of Quebec invited private sector employers to take the particular situation facing our society into consideration and to be understanding with employees who must take time off work2. With these measures aimed particularly at establishing social distance to slow the spread of the virus, guidelines have been clarified and may serve as a basis for the needs and requirements of both employers and their employees, taking into account the particularities of each workplace. Obligations in the Workplace Employers must take the measures necessary to protect the health, safety and physical well-being of their employees, their clients and the public. Employees are held to the same standards; that is, to preserve their own health as well as that of their colleagues and any third parties they may be in contact with in the course of or in connection with their work. The Charter of Human Rights and Freedoms, the Act Respecting Occupational Health and Safety, the Canada Labour Code and fundamental principles such as those set out in the Civil Code of Québec provide that individuals must not behave in a way that would cause increased harm to others. They must also act in such a way as not to harm their own health, and, by the same token, that of the people in their workplace. These principles are well known to human resource managers and are foundational to establishing workplace policies and guidelines. Policies and Guidelines for Employees In order to encourage employees to contribute to maintaining a healthy work environment free from contamination risks, employers should diligently inform their employees of their intention to follow government guidelines. Internal guidelines could include the following: Cancelling meetings or other non-essential work events that may promote the spread of the virus; Reminding employees of their obligation to report any situation that may require them to self-isolate; Establishing and informing employees of necessary arrangements should isolation become necessary and telework not be possible; Explaining the steps to follow to plan telework and reminding people of the applicable rules under existing policies and employment contracts regarding the confidentiality of business or personal information used in the workplace; Informing employees about of a contingency plan to define, among other things, emergency contact persons and information transmission protocols; and instructing employees on how to access workplace premises or organize their work in the event of a containment situation. Employee Travel and Professional Activities An employer may cancel any professional activity that could reasonably be expected to pose a risk to the health of its employees, clients or the public. In so doing, an organization modifies its expectations as to workplace deliverables. In the current context and further to the government guidelines issued on March 12, 2020, an employer should: Prohibit all business travel both to affected or unaffected areas; Ask its employees to hold essential meetings by videoconference or other technological means; Provide that any other meeting or professional activity in its offices or elsewhere be held in such a way as to reduce the risk of contagion (e.g., videoconferencing, conference calls, observance of hygiene measures and reasonable distances between people). Isolation of Diagnosed Employees or Preventive Isolation Further to the recommendations of public health authorities and on the basis of the government guidelines issued on March 12, 2020, an employer should require that any employee returning from abroad proceed to self-isolate for 14 days. If the employee shows symptoms before the end of the 14-day isolation period, he or she should contact the services set up by the Ministère de la Santé (1-877-644-4545). A nurse may then refer the employee to a designated COVID-19 clinic if necessary. Prior to permitting such an employee to return to work, an employer should be informed of the outcome of these steps and be satisfied that the employee will not pose a risk to colleagues and clients, which may include requesting a medical certificate from the designated COVID-19 clinic if the employee was referred to one. In the case of business travel at an employer’s request prior to the government directives issued on March 12, 2020, any self-isolation period should be paid. If the travel was personal, the payment and form of remuneration during the self-isolation period depends on certain factors, including: At what moment the decision to maintain the departure was made: before or after the government’s instructions were issued or an explicit employer policy was implemented; Positive or negative diagnosis further to a test; Capacity for telework while in isolation. Should employees be unable to report to work (due to their return from abroad, other reasonable grounds to believe that they may be a carrier, or if they or one of their relatives has tested positive), their employer should consider possible avenues under the employment conditions applicable to each particular employee: Paid leave or other conditions available under the Act respecting labour standards and working conditions or collective agreements in the organization, which must then be agreed upon with the employee in question and with the union’s cooperation, if applicable3; Group disability insurance benefits; Record of Employment for sickness and employment insurance sickness benefits; Quarantine and employment insurance benefits as a result of forced leave from work4; Record of Employment for leave and caregiving benefits; Telework if the employee’s tasks can be performed remotely or adapted to do so. Refusal to work The Act Respecting Occupational Health and Safety allows employees to refuse to perform work if they have reasonable grounds to believe that the performance of said work would expose them to danger for their health, safety or physical wellbeing, or would expose another person to similar danger. This Act also provides for the process by which such refusal must be dealt with. However, the prevention and management of work refusal situations could likely be greatly facilitated if employees are aware of the actions taken by the employer to prevent contamination and other health risks to those present in the workplace. For the protection of employees, suppliers and customers, employers must implement the sanitation measures prescribed by government authorities and make any necessary materials available. It must also encourage its employees to follow sanitation instructions and do the following: Provide access to dispensers for alcohol-based antiseptics, tissues and waste bins; Regularly clean common areas (e.g. meeting rooms, cafeteria, etc.); Provide contact information for Info-Santé and the Ministère de la Santé for additional information or screening. According to the government guidelines issued on March 12, 2020, for work premises that can accommodate 250 or more people, the premises must be prepared, or the number of people limited, or those present must be instructed to remain at least two metres away from each other. Work reorganization In order to maintain their activities and provide service to their clientele, some businesses may find it advantageous to alter the way in which their employees work. In addition to resorting to telework, employers may consider alternative working arrangements to maintain adequate staffing while reducing the risk of spreading the virus: Flexible or modified work schedules or staggered working hours (in accordance with the conditions set out in section 53 of the Act respecting labour standards); Rotating schedules to reduce the number of employees in the workplace at the same time; Solicitation of retirees who can fill absences owing to sickness. Immigration Currently, Canadian immigration authorities have put in place emergency measures for foreign nationals in Canada or abroad whose applications for temporary residence have been delayed because of the closure of Canadian visa application centres in mainland China (among other locations). Extensions have been granted to help applicants to obtain now hard-to-get documents. All other applications and all other components of the Canadian program are not affected at this time. No new medical tests for newcomers have been announced and no specific travel restrictions have yet been adopted, with the exception of self-isolation measures for all those arriving from abroad. Health Canada screening officers are present at some Canadian air and land ports of entry, but this measure is still minimally applied at this time. We expect further restrictions at Canadian ports of entry to be implemented in the coming days as the situation progresses. The Key: Keep your Information Up to Date It is important to make sure that the information that you rely on as an employer to make decisions in the current environment is reliable so that your employees can perform their work safely, and for you to continue offering service to your clients. Prudent HR managers should visit the websites of the competent government authorities to confirm the exact terms of the requirements and guidance that these provide. Each workplace operates in its own context, and employers would do well to plan for various possible solutions depending on their circumstances and considering their specific workforce and the needs of their clientele. The events of the last few days have shown that guidelines can change rapidly (even in the course of a day), especially when the spread of the coronavirus suddenly gains speed or following the directives issued by governments to promote “social distancing” as counter the impacts of a possible mass contamination. The diligent implementation of preventive measures and appropriate action as the situation evolves will help ensure, employers are being responsible while, effectively guarding against future civil or criminal claims. The members of our Labour and Employment and Business Immigration teams are available to answer any questions you may have about measures you are considering or the solutions you are seeking given the realities of your organization and its activities. Press release on March 12, 2020. See the same Government of Quebec press release. Employee and union cooperation may be necessary if working conditions need to be adjusted at the employer’s request, which may wish to offer paid leave to cover part of the isolation period. The federal government recently amended the conditions applicable to quarantine to suspend the one-week waiting period before Employment Insurance benefits are paid..
What can be done to discipline a manager? Potential solutions to keep in mind
Except in cases of “serious misconduct,” managing a manager whose performance is unsatisfactory or whose conduct is inappropriate can be delicate. Because of workplace usage and practices in Quebec, disciplinary management of managers differs from that applied to other employees of the company. Progressive disciplinary measures do not apply to managers, who are rarely, if ever, suspended. HR Manager : Guidelines In a situation involving an executive, an HR manager will have to assess whether or not there is a “serious reason” for dismissal in light of the duties assigned to the executive and his or her responsibilities with respect to alleged actions or situation. For example, an executive who does not take into account the requests of the Board of Directors or his or her supervisor would be guilty of insubordination, which is a serious reason for dismissal, as is the inability to put into place an effective team. Given that executives have a high degree of discretion in how they carry out their duties and responsibilities, it is up to them to find ways to meet the company’s expectations and objectives, unless these are unrealistic or unreasonable in the circumstances. Nevertheless, executives must be notified of any dissatisfaction on the part of their employer when their conduct is inappropriate or does not meet stated expectations and objectives. It will then be up to them to make the necessary adjustments. The courts recognize these special rules for executives. The employer’s power to sanction Section 2094 of the Civil Code of Québec (C.C.Q.) provides that an employer may unilaterally resiliate an employee’s employment contract without notice for a “serious reason.” The courts consider that a serious reason is synonymous with dismissal for “good and sufficient cause,” as defined in jurisprudence or in section 124 of the Act respecting labour standards. Taking into account the specific context of executives is necessary. They have considerable latitude in the performance of their duties, they exercise control over many company employees, their responsibilities may influence the future of the company, and they generally have better working conditions. As a result, employers may be more demanding of executives, who [translation] “should not be treated as subordinate employees in disciplinary matters1.” Thus, the courts have recognized the following principles: Executives cannot “benefit” from so-called progressive discipline like other company employees, as a suspension would be illogical given the nature of their position. Disciplinary measures are intended to help employees understand the seriousness of a situation in order to be able to remedy it. This cannot reasonably be achieved because a suspended manager would suffer a loss of credibility with the teams that he or she supervises2. An employer must inform an executive of any dissatisfaction in terms of conduct or performance. “When the executive in question knows the reasons for the dissatisfaction, it is up to him or her to review his or her ways of doing things and meet senior management’s expectations. Senior management is not required to explain what needs to be changed, even more so when the executive has many years of experience.”3 A “serious reason” refers to an employee’s violation of one or more essential conditions of his or her employment contract, or improper conduct on his or her part. In Sirois c. O'Neil, the Court of Appeal considered that the dismissal of Microcell’s President and Chief Executive Officer was justified because, by his conduct, he had alienated the majority of the senior managers that he was responsible for. The Court considered that he had failed to fulfil the obligations inherent to the task entrusted to him, which involved direction, management and organization: [Translation] “He had been given a command position. It was his obligation to form a united, motivated and efficient team. That was his main role. He failed in his task. To illustrate the situation, the locomotive was unable to pull the cars4.” In order to determine whether the employer’s reasons for dismissal are “serious,” the various factors are assessed according to the circumstances, including the importance of the executive’s position, the nature of his or her employment and the seriousness of the complaints. In Marc Van Den Bulcke c. Far-WicSystèmesLtée et GroupeSécuritéC.M. inc. the Superior Court held that: [Translation]  “Depending on the circumstances, negligence in the performance of duties, lack of self-discipline and performance below that agreed upon with the employer constitute serious reasons for dismissal without notice or compensation in lieu of notice5.” The Tribunal administratif du travail essentially applies the same principles as the courts. As an illustration, the Commission des relations du travail pointed out that it is up to an executive to know what conduct is incompatible with his or her obligations under the employment contract in Mommaerts c. Élopak Canada Inc.6: [Translation]  “(...) Moreover, when the latter is given considerable responsibilities, it becomes clear that he or she cannot be treated in the same way as an employee. Indeed, the greater a person’s responsibilities in a company, the less need there is to warn them of the consequences of the actions that they take or fail to take. This is implicit to the function. [Translation]  “How can we believe that a suspended executive would have the same credibility with employees, fellow executives, suppliers and customers? The answer is obvious and favours a different application of the principle of gradation of sanctions.” Conclusion Although executives have privileges over other employees in an organization due to their status, this status can quickly render them vulnerable if they fail to live up to their responsibilities. Valcourt c. Maison l'Intervalle, D.T.E. 95T-322 (S.C.), page 12 Yersh c. CRT et FCA Canada inc. (Chrysler), 2019 QCSC 740, para. 111-113 Bélanger c. Opéra de Québec, D.T.E. 98T-197 (S.C.), page 23. See also Laramée c. Poly-Actions Inc., D.T.E. 90T-923 (S.C.) and Houle et Fédération de l’U.P.A. de Sherbrooke, D.T.E. 84T-303 (A.T.) J.E.99-1343 (C.A.), page 29 2010 QCSC 6654, para. 61 2011 QCCRT 0375, para.122 and 123
The Court of Appeal hands down its decision in the Kativik case: A second chance for poor performance employees?
Does an employer have to make reasonable efforts to reassign an employee to another suitable position before proceeding to dismissal due to poor performance? This issue has been the cause of a great jurisprudential controversy, especially since the Superior Court rendered its decision in Kativik1. This judgment handed down in October 2017, implied that such an obligation could apply to Québec employers in addition to the five criteria established in Costco2 to determine whether a dismissal for poor performance is abusive, arbitrary or unreasonable. Labour market stakeholders have since been waiting for the Court of Appeal’s judgment in this case, which was finally rendered on May 31, 20193. Background on the Kativik case Here are the highlights of this saga4: An administrative technician had agreed on a three-month performance improvement plan with an employer in order to solve performance issues; During this period and faced with the employee’s inability (or difficulty) to meet the plan’s requirements, the employer offered him a receptionist position and gave him three days to accept the offer, even though the position was posted with a deadline for accepting applications that was longer than the amount of time given to the employee; The employee refused the offer, preferring to continue working according to the terms of his improvement plan; Given the employee’s lack of progress, the employer dismissed the employee for administrative reasons, being poor performance. Arbitrator Jean Ménard was seized of the grievance challenging the dismissal. He held that the employer had failed to fulfill its obligation to reassign the employee to less demanding duties, relying in particular on three arbitral awards filed by the labour union attorney applying this principle. He thus allowed the grievance5. The arbitrator pointed out that it was unreasonable for the employer to require a response from the employee within three days when the evidence showed that the employee would have been able to perform the replacement position duties. The employer challenged this decision by way of an application for judicial review. The Superior Court dismissed the application on the grounds that arbitrator Ménard had rendered a reasonable ruling by concluding that the employer had not fulfilled its obligation to find an acceptable alternative to the complainant’s dismissal. To do so, the Court indicated that although the five criteria used in Costco did not clearly state this sixth criterion, it remained applicable in Québec according to the principles enunciated in Edith Cavell6, a decision from British Columbia that inspired the five criteria developed and established by the Québec courts for dismissals due to poor performance. Decision of the Court of Appeal The judges of the Court of Appeal dismissed the appeal and upheld the arbitral award on the grounds that it possessed all the attributes of reasonableness. However, the judges indicate that : The arbitrator departed from the majority of jurisprudence on dismissal for unsatisfactory performance;7 Another decision-maker could have come to another conclusion;8 This approach is certainly uncommon, but it is not unreasonable.9 That means that although an employer may terminate an employee’s employment for performance reasons without having to reassign him or her to another suitable position, a Tribunal may find that such dismissal is unjustified, depending on the circumstances of the case, in the absence of evidence of the employer’s effort to reassign the employee10. In this regard, establishing the legality of dismissal for unsatisfactory performance essentially comes down to context and will be decided on a case by case basis. The Court also points out that in the presence of a plurality of applicable criteria and jurisprudential controversies, the same factual situation may give rise to different reasonable outcomes, as is the case here. The Court thus concluded that the trial judge was right to dismiss the application for judicial review given that the arbitral award, in which the arbitrator applied this sixth criterion, was a possible and acceptable outcome. Conclusion: A new criterion, yes or no? On the basis of the Court of Appeal’s reasons in this case, an employer may not be required to make reasonable efforts to reassign an employee to another suitable position before proceeding to dismissal for poor performance but depending on the circumstances, may be obliged to do so. A prudent manager should therefore analyze each individual situation in order to determine whether or not the circumstances require a reassignment. It should be noted that in the Kativik case, the employee’s new supervisor had significantly changed his duties, which resulted in performance difficulties and the personal improvement plan. Yet, the employee had not encountered any difficulties in his previous duties. Such special circumstances could thus confer reasonableness upon a conclusion of the arbitrator requiring the employer to attempt a reassignment before dismissal. At the time of publication, the delays to file an application for leave to appeal to the Supreme Court have not expired. We shall follow this matter and keep you informed of any future developments. Commission scolaire Kativik c. Ménard, 2017 QCCS 4686; on the subject of the jurisprudential controversy, see our article published on the Ordre des CRHA website [French only]. Costco Wholesale Canada Ltd. c. Laplante, 2005 QCCA 788: this landmark decision in Québec outlines the five criteria used by Québec courts to uphold a dismissal for poor performance. They are a) the employee is aware of the company’s policies and what the employer expects of the employee, b) the employee has been notified of any deficiencies, c) the employee had the support needed to remedy the deficiencies and meet his objectives, d) the employee was given a reasonable time period within which to adapt and e) the employee was informed of the risk of dismissal should there be no improvement. Commission scolaire Kativik c. Association des employés du Nord québécois, 2019 QCCA 961. The facts are more fully described in our publication further to the Superior Court decision. Association des employés du Nord québécois et Commission scolaire Kativik, 2015 QCTA 247, para. 126. Re Edith Cavell Private Hospital and Hospital Employees’ Union, Local 180, (1982), 6 L.A.C. (3d) 229 (BC). Kativik, supra note 3, para. 19. Id., para. 18. Id. Id. para. 17.
Personnel placement and recruitment agencies : what are the constraints of the new regulation?
In June 2018, amendments made to the Labour Standards Act ("LSA") included additional obligations and responsibilities for personnel placement agencies and temporary foreign worker recruitment agencies (the "Agencies"). However, these amendments were only supposed to come into effect on the date the government adopted a regulation setting out the standards and procedures for giving effect to the amendments to the Labour Standards Act. On April 10, 2019, the Quebec Minister of Labour, Employment and Social Solidarity published a Draft "Regulation respecting personnel placement agencies and recruitment agencies for temporary foreign workers" (the "Draft Regulation"). Although the introductory text to the Draft Regulation states that "the impact study shows that the proposed measures will have an insignificant impact on enterprises", on the contrary, our analysis of the Draft leads us to conclude that it will impose significant constraints on the Agencies. The beneficiaries of this reform appear, rather, to be the Agency workers and client enterprises. Agency Licence The Draft Regulation establishes a mandatory licensing scheme for Agencies: To obtain an operating licence issued by the Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST"), the Agencies and their officers must meet a series of criteria relating to integrity, transparency and solvency. These Agencies and their officers must be in good standing with various governmental departments and bodies, both in terms of compliance with the laws and the payment of fees or contributions. For example, an Agency may be disqualified if "in the 5 years preceding the application, the person, partnership or other entity has been condemned by an irrevocable decision of a court relating to discrimination, psychological harassment or reprisals, as part of employment" or because of criminal or penal convictions connected with the carrying on of the activities covered by the license application. All licences must be renewed every two years and, in the absence of new facts, a period of two years must elapse before a new licence application can be filed following a denial. Applications for a placement agency licence must be supported by the payment of security in the amount of $15,000 (to guarantee the protection of employees' rights under the LSA). Protection Of The Rights Of Agency Employees The Draft Regulation requires Agencies to take various measures to promote the exercise by employees of the rights protected by the Labour Standards Act ("LSA"). For example: The Agency must provide the employee it assigns to a client enterprise with a document describing his or her working conditions and identifying the enterprise in question. It must also provide the employee with the information documents made available by the CNESST concerning employees' rights and employers' obligations in respect of labour. The Agency must remind the client enterprise of its obligations regarding employee health and safety. The Agency may not charge fees to an employee for his or her assignment or training. Finally, restrictions on the hiring of Agency employees by a client enterprise may not exceed six months following the beginning of the assignment. Administrative Measures And Appeals The CNESST may suspend an Agency's licence at any time in the event of a breach of the requirements and, once the Draft Regulation has come into force, the Agency will be able to appeal the CNESST's decision to the Administrative Labour Tribunal (the “ALT”). Procedures For The Forthcoming Adoption Of The Draft Regulation Anyone wishing to make comments on the Draft Regulation is invited to submit them in writing to the Minister during the 45-day period beginning on April 10, 2019. We expect that various associations will be up in arms to get the Minister to relax what amounts to a very restrictive regulatory framework. At the end of this 45-day consultation period, the Minister may proceed with the formal publication of the Regulation, which will come into effect 15 days after publication. Agencies that are already operating on the date the Draft Regulation comes into effect may continue to operate, provided they apply to the CNESST for a licence within 45 days of that date. Note: All the provisions of the Labour Standards Act ("LSA") relating to Agencies will become law at the same time as the Regulation, including section 41.2 of the LSA, which prohibits a placement agency from remunerating an employee at a lower rate of wage than that granted to the employees of the client enterprise who perform the same tasks in the same establishment solely because of the employee's employment status. For the complete version (only available in French) of the draft regulation, click here.
Recruitment: Why you need to prepare your interview questions?
During a job interview, an employer cannot ask questions that involve grounds for discrimination prohibited under the Charter of Human Rights and Freedoms1 (the “Charter”), including the religion, marital status, or ethnic or national origin of a candidate. Simply asking such questions could result in a violation of the Charter and, for a claim for damages to be disallowed, the employer would be required to prove that the information sought was necessary to determine if the candidate had the aptitudes or qualifications required for the position to be filled.2 Learning from the judgments rendered by the Human Rights Tribunal In 2018, the Human Rights Tribunal (“HRT”) rendered three decisions that set out principles for employers to consider when hiring. The HRT ruled on complaints filed following recruitment processes in which questions were asked about a candidate’s accent or the ethnic origin of a candidate’s name. The latter was not subsequently selected as a candidate. The plaintiff claimed that he was discriminated against based on his ethnic or national origin. The HRT pointed out that section 18.1 of the Charter is aimed at eradicating discrimination in hiring by prohibiting questions about personal characteristics that do not relate to the candidate’s qualifications or abilities. The employers admitted to asking about the plaintiff’s ethnic origin, but stated that the question fell within a specific context: In order to discern if the ethnic origin of the plaintiff corresponded to one of the countries in which the business’s partners were located, so as to justify the question as relating to the employment requirements. During an informal conversation that took place before the interview. Out of curiosity, and to understand why the candidate addressed the employer's representatives in familiar French. The HRT rejected these arguments and emphasized that no matter the reason behind the question or the manner in which it was formulated, it remains that the question, asked during the job interview, was aimed at learning a personal characteristic of the candidate as it related to his origin, which is prohibited by the Charter. In its decisions, the HRT also reiterated the following points: Informal conversations that take place before or after a formal interview are part of the steps in a hiring process, and, therefore, they fall under the protections of the Charter of Human Rights and Freedoms. If a question is asked about a candidate's ethnic origin, the employer must be able to demonstrate that the answers sought relate to the qualifications or abilities required for the job. Approach to be taken by employers 1. Prepare an interview plan and follow it These decisions confirm that it is very important to be well prepared for the hiring process and to pre-establish an interview plan that clearly defines the employment requirements, so as to ensure that you only ask questions that directly relate to such requirements. 2. Avoid improvised questions On the basis of the HRT decisions, questions asked “just out of curiosity,” off the cuff, that are more interpersonal in nature, or are meant to lighten the mood must be excluded, especially if such questions establish a direct or indirect connection to any of the grounds for discrimination prohibited by section 10 of the Charter. 3. Require the same vigilance from external consultants and in written communications This planning must also include and regulate the content of email exchanges, text messages, and pre-interviews based on new methods of communication or pre-selection, by both the employer and its external consultants, given that the HRT emphasized that the guiding principles of the Charter can also be applied with the necessary adaptations in the digital era. CQLR, c. C-12, ss. 10 and 18.1. Section 20 of the Charter.
Employers: 6 main amendments to the Act respecting labour standards
On June 12, 2018, the Act respecting labour standards (the “Act”) was amended to give employees more flexibility in order to improve their family work balance. Here is an overview of the main changes made to the Act. The reference guide specifies which amendments will be coming into force on January 1, 2019. All other amendments have been in force since June 12, 2018. Prohibition on differences in treatment based on employment status For employees who perform the same tasks in the same establishment, the rate of wage, the length of vacation or the method of calculating the related indemnity cannot be different solely based on their differing employment status. For example, a temporary employee and a regular employee performing the same tasks in the same establishment must be remunerated on the same wage rate. Prohibition on differences in treatment based on hiring date Improvement of the existing protection against differential conditions of employment based on the hiring date of employees who perform the same tasks in the same establishment. Pension plans and other benefits plans have been added to the list of employment conditions that cannot be the object of differential treatment such as wage, hours of work and various leave entitlements provided for in the Act. (Employers who implemented pension or benefits plans with differences in treatment based on the hiring date of the employees before June 12, 2018, will not be required to amend them..) An employee who believes he or she is a victim of differential treatment with respect to pension plans or other benefits plans may file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) within 12 months of finding out this differential treatment. (This amendment does not prohibit distinctions based on employment status. Two employees with different statuses may still be entitled to different benefits and pension plans, subject to possible recourses under the Charter of human rights and freedoms (e.g., discrimination based on age, social condition, etc.). Overtime An employee may now refuse to work more than two hours (instead of four) after his regular daily working hours. Therefore, an employer cannot force an employee to work more than two hours of overtime, except in special circumstances provided for in the Act which allow the employer to demand that the work be carried out: Danger to the life, health or safety of employees or the population at large Risk of destruction or serious deterioration of movable or immovable property Cases of superior force Contravention of the employee’s professional code of ethics Work schedule Employees may refuse to work if they are not informed at least five days in advance that they will be required to work. Thus, employers cannot force employees to work without prior notice of at least five days, except in special circumstances provided for in the Act: Shift extended by a maximum of two hours (refer to previous section - Overtime) Employees required to remain available given the nature of their duties Agricultural workers (e.g., tasks related to the sowing, harvesting, monitoring and maintenance of agricultural production) Danger to the life, health or safety of employees or the population at large Risk of destruction or serious deterioration of movable or immovable property Cases of superior force Contravention of the employee’s professional code of ethics Important: this amendment gives employees a right of refusal, but places no obligation on employers to provide employees with their work schedule five days in advance. Staggering of working hours An employee (non-unionized) may make an agreement with the employer, on an individual basis, to stagger his working hours over a period of more than one week for the purposes of calculating overtime, without prior authorization of the CNESST. This agreement must meet the following conditions: The agreement is made in writing. The working hours are staggered over a maximum period of four weeks. Each week of the specified staggering period may not exceed the business’ regular work week by more than 10 hours, which is 40 hours a week for most employees. The weekly average of the hours worked during the staggering period may not exceed the number of hours of the regular work week, which is usually 80 hours over a two-week staggering period, for example. The written agreement provides that each party may resiliate the agreement with notice of at least two weeks before the end of said agreement. Despite this amendment to the Act, employers may still ask for the authorization of the CNESST to stagger all of their employees’ working hours. In such cases, the CNESST policy entitled Politique sur l’étalement des heures de travail [Policy on the staggering of working hours], providing for more restrictive terms of eligibility, must be applied. Domestic or sexual violence Employees who have been the victim of domestic or sexual violence may now benefit from a leave of up to 26 weeks within a 12 month period, just like employees who must be absent due to sickness, organ or tissue donation, an accident or a criminal offence. Even if the employee has not accrued three months of uninterrupted service Entry into force January 1, 2019. The employment relationship is maintained during this leave The first two days of absence owing to sickness, an organ or tissue donation for transplant, an accident, domestic violence, sexual violence or a crime will be paid. Maximum of two paid days of leave in a given year in these situations, as for absences for family and parental reasons (refer to following section). Family and parental leave and absences General improvements: certain leave entitlements have been reformulated to ensure that employees caring for a relative or acting as a caregiver for someone may benefit from such entitlements and be provided with employment protection for a longer period. The duration of the leave of absence increases from 12 to 16 weeks over a period of 12 months when an employee must be absent because of the state of health of a relative or a person for whom the employee acts as a caregiver. This leave entitlement is 36 weeks long if the relative or person is a minor child of the employee. Other leave entitlements have also been improved or added, such as leave in the event of the disappearance or death of a minor child. Remuneration for the first two days of a leave of absence to fulfil obligations relating to the care, health or education of theemployee’s child or the child of the employee’s spouse, or because of the state of health of the employee’s spouse or relative An employee may be absent from work for ten days per year to fulfil family and parental responsibilities. The first two annual leave days that are taken will be paid if the employee has three months of uninterrupted service. pour un salarié justifiant trois mois de service continu. Maximum of two paid days of leave of absence in a given year for family or parental reasons, or for sickness, an organ or tissue donation for transplant, an accident, domestic violence, sexual violence or a crime (refer to previous section). Other leave entitlements related to family or parental responsibilities Authorized leave of absence for two paid days (instead of one) in the event of the death or funeral of an employee’s spouse or child, the spouse’s child, the employee’s father, mother, brother or sister. The employee may also be absent from work, without pay, for three more days (instead of four) on such occasion. In the event of a birth, an adoption or the termination of a pregnancy, absence is authorized for the first two days (paid), even if the employee has not accrued 60 days of uninterrupted service. The option of taking three additional unpaid days off is maintained. Statutory general holidays An employee is entitled to an indemnity or a compensatory leave, at the employer’s choice, if a holiday provided for in the Act does not coincide with an employee’s regular work schedule. Annual leave Amended so that employees with three years of service (instead of five) are entitled to an annual leave for a minimum duration of three consecutive weeks. Despite this amendment, employees will have to have completed the reference period in which they will have accrued at least three years of service to be entitled to a third week of annual leave. Harassment prevention and complaint processing policy Obligation to adopt a harassment prevention and complaint processing policy Psychological harassment, including sexual misconduct New time limit to file a compliant for harassment The 90-day time limit to file a complaint has been extended to two years starting from the last incidence of the alleged conduct. This longer time limit does not apply to complaints filed or prescribed before June 12, 2018 (Dinu v. 9227-3754 Québec Inc., 2018 QCTAT 4502) It applies to complaints filed with the CNESST or grievances filed in accordance with the collective agreement. Best managerial practice: document all reported incidents, the decisions made subsequently and the reasons behind them, in order to include the information gathered in the response to the complaint, which may be submitted several months after the events. Complaint filed with the Commission des droits de la personne et des droits de la jeunesse (CDPDJ – the Human Rights Commission) in the event of sexual harassment After obtaining the concerned employee’s consent, the CNESST must send all complaints of harassment involving discriminatory conduct to the CDPDJ. Provisions will come into effect on a date to be determined (subject to the adoption of a regulation) Better protection of workers hired through personnel placement agencies and recruitment agencies for temporary foreign workers Agencies required to obtain a licence Personnel placement agencies Prohibition on giving an employee a rate of wage that is less than that of other employees of the client enterprise doing the same work in the same establishment due to the employee’s hiring date. Personnel placement agencies and client enterprises are solidarily liable for pecuniary obligations pursuant to the Act. Employers of temporary foreign workers Further obligation to provide information to the CNESST such as the term of the contract and the arrival and departure dates. In the event of criminal prosecution for violation of the Act by a legal person or its representatives: A director or officer of the legal person will be presumed to have personally committed the offence, unless proof of due diligence is established.
Cannabis legalization: a reference guide for employers
The use of cannabis for recreational purposes will be legal in Canada as of October 17, 2018. Employers will have to manage cannabis consumption in the workplace to ensure that employees do their work safely while respecting applicable laws. Summary of the law in Quebec Considering the various applicable laws and regulations concerning cannabis in Quebec, Quebec employers need to be aware of these main legal restrictions: Adults may possess up to 30 grams of dried cannabis in a public place, and up to 150 grams in private premises; Minors may not possess or consume cannabis; The sale, production and trafficking of dried cannabis by individuals remains illegal; Smoking or vaping cannabis is prohibited in places where smoking tobacco is already prohibited, including enclosed workplaces and any other enclosed space that admits the public; In certain cities and municipalities, consuming cannabis in all public places is prohibited; Working while impaired by alcohol or drugs, including cannabis and similar substances, is also prohibited; It is an offense under the Criminal Code to have a concentration equal to two nanograms (ng) or more per millilitre (ml) of blood within two hours after ceasing to operate a motor vehicule; and Once effective tools are available to detect the presence of cannabis in saliva, it will be prohibited in Quebec for any person to drive or to have control of a road vehicle if there is a detectable presence of cannabis or other drug in the person’s saliva. What are the responsibilities of employers and employees? In Quebec, an employer’s right to limit or ban any form of cannabis use by members of its personnel at the workplace is recognized, even if the workplace is not enclosed. Quebec legislation now requires employers to ensure that a worker does not perform work when his or her condition represents a risk to his or her health, safety or physical well-being, and also to other persons at or near the work place. Employees have a similar obligation. In order to address these responsibilities, employers should list the applicable rules in the workplace to prevent and limit potential problems stemming from cannabis legalization. Employers should adopt or update a policy that is clear and adapted to the realities of the workplace. What changes should be made to your drug and alcohol policy? Ensure that the policy specifically covers legal cannabis: erase all explicit references to cannabis consumption as an illicit activity; As much as possible, align cannabis restrictions with those for alcohol, specifically in terms of possession, consumption, trafficking, distribution and to the concept of impairment; Define the workplace (consider parking lots, patios, etc.) and set out the rules for consumption in open spaces; Define impairment and establish tolerance thresholds for employee consumption with respect to the risks associated with their positions; Reiterate that employees must show up for work unimpaired, while respecting the tolerance threshold established by the employer, and that they must remain unimpaired for their entire shift; Include all forms of cannabis consumption (smoked, ingested, etc.) in the policy; Specify that consumption is prohibited during work hours and in the workplace as well as before or after the shift when necessary; and Set out rules for cannabis consumption during work-related activities (breaks, meal times, social activities, off-site Christmas parties, meetings with clients, etc.). Can employers have employees take drug tests? The courts have recognized that drug tests may be administered in the following circumstances: If the employer has good reason to believe that an employee is impaired by the effects of alcohol or drugs while at work; Following a serious incident; Following a consumption-related absence; As part of a last chance agreement; With the employee’s express, free and voluntary consent. It is still very important for employers, and particularly managers, to observe and document objective signs of impairment, since a positive drug test does not necessarily prove a violation of the employer’s policy or the employee’s impairment. What obligations exist for accommodating medical cannabis? Despite a policy prohibiting the possession and consumption of cannabis in the workplace, an employee may request accommodation to use cannabis for therapeutic reasons. As with any accommodation request related to a disability, the employer must understand the basis of the request and evaluate the request in order to determine if the policy constitutes undue hardship. Employers should not hesitate to ask questions and demand a detailed medical certificate in order to fully understand the conditions of use prescribed by the doctor, particularly: Length of treatment; Dose; Required frequency of consumption; and Side effects. How does one prepare for the legalization of cannabis? The first step for employers is to evaluate their employees’ positions as well as their needs and expectations in terms of preventing drug consumption. Following this evaluation, employers will be able to adapt the terms of their policies on drugs and addictions. It is also important that the policy’s provisions comply with laws and jurisprudence and that each infringement of an employee’s fundamental rights (e.g., prohibiting consumption outside of the workplace) be justified by considerations that are specific and proportional to the employer’s objectives based on employment requirements and the nature of work activities. Supervisors and managers should also be trained to detect cannabis consumption and intoxication, as well as signs of such consumption, and to administer tests to prove intoxication. Implementing appropriate tools, such as a checklist, may facilitate the analysis and preparation of a properly documented file. Proactive employers equipped with tools and procedures that suit this new reality will be able to effectively carry out their managerial responsibilities.
Amendments to the Act respecting labour standards adopted: new changes with immediate effect
On June 12, 2018, Bill 176 was adopted, resulting in the immediate enactment of several amendments to the Act respecting labour standards (ALS) which seeks in particular to facilitate work-family balance. Our article published March 21, 2018 addresses the key aspects of these changes. However, additional amendments have been made to the LNT which certainly bear mentioning: Domestic and sexual violence Employees who have been the victim of domestic or sexual violence may now benefit from a leave of up to 26 weeks within a 12 month period, just like employees who must be absent for organ or tissue donation, accidents, or who have been the victim of domestic violence or criminal offences; Difference in treatment clauses An employee who believes he or she has been the victim of differential treatment with respect to retirement plans or other benefits may file a complaint with the Labour standards, pay equity and occupational health and safety commission within 12 months of becoming aware of the difference; Employers having put in place, prior to June 12, 2018, differential retirement or benefit plans based on the hiring date of its employees will not be required to change those plans. Psychological harassment and sexual misconduct The second paragraph of section 81.19 of the ALS requires employers to adopt a policy to prevent psychological harassment and handle complaints, but going forward this policy will now be required to include a section regarding sexual misconduct. Employers will have until January 1, 2019 to adopt a policy regarding psychological harassment in accordance with the aforementioned amendments to section 81.19 of the ALS. The 90 day time limit for filing a complaint with the Labour standards, pay equity and occupational health and safety commission with respect to conduct constituting psychological harassment will now be extended to two (2) years starting from the last incidence of the alleged conduct. This new time limit will be deemed to be integrated into any collective bargaining agreement; NOTE: Managers and HR advisors must be even more careful to record reported incidents (whether or not they are followed up on) as well as the corresponding decisions made and the reasons underlying such decisions. Such proactive vigilance will make it possible to resolve potential conflicts and, where necessary, have the benefit of the information that was gathered when preparing a response to a complaint submitted several months after the incident. In contrast to the previous version of the bill which would have required the Labour standards, pay equity and occupational health and safety commission to notify the Quebec human rights and youth commission without delay of cases of complaints of sexual misconduct, going forward the Labour standards, pay equity and occupational health and safety commission must now provide the Quebec human rights and youth commission with any complaint of discriminatory conduct after having obtained the consent of the employee concerned. Effective dates and other specifics The majority of the amendments to the ALS came into effect on June 12th of this year. However, certain provisions will not come into effect until January 1, 2019. 1 Vacation time This is the case for the amendment which would entitle employees with 3 years of service (as opposed to 5 years) to an annual vacation of at least 3 continuous weeks. Despite this amendment coming into effect on January 1, 2019, an employee must have completed the reference period during which he or she completed 3 years of service to be entitled to a 3rd week of annual leave. Prohibition on differential treatment on the basis of employment status The amendments to Articles 41.1 and 74.1 will also enter into force on January 1, 2019. These amendments are intended to clarify that the rate of pay, the length of vacation or the method of calculating the related indemnity cannot be different between colleagues who perform the same tasks in the same establishment solely based on their differing employment status. For example, a temporary employee and a regular employee performing the same tasks in the same establishment must receive wages based on the same rate of pay. Differential treatment as it pertains to pension plans or other benefits based on an employee’s date of hire will also be prohibited as of January 1, 2019. It is important to note that this amendment, unlike the wage rate and vacation leave amendments, does not prohibit differential treatment based on employment status. As a result, two employees with different statuses may still be entitled to different benefits and pension plans. For the full version of the approved bill, click here. Amendments to sections 59.0.1 (refusal to work more than two hours beyond typical hours or without being notified five days in advance), 69 (3 weeks of vacation for employees with 3 years of service), 79.7 (compensation for 2 days of leave) and 80 (2 days of paid bereavement leave).
Essential services in the health sector :
the Tribunal administratif du travail declares section 111.10
of the Labour Code unconstitutional
In a decision rendered this past August 31st by Justice Pierre Flageole,1 the Tribunal administratif du travail (the “Tribunal”) declared section 111.10 of the Labour Code2 to be constitutionally inoperative. This provision requires that a set minimum percentage of employees must remain on the job during a strike in health and social services institutions. The decision was rendered in the context of proceedings filed by unions affiliated with the Confédération des syndicats nationaux (the “Unions”). The proceedings were filed in the context of common front negotiations in 2015, prior to strike action being taken. Among other things, the Unions argued that the minimum percentages set by this provision are arbitrary and bear no relation to what should be considered necessary for the maintenance of the truly “essential” services in the event of a strike. Based on testimony of the employees, the Unions argued that several of the tasks performed by those employees were not “essential” and that the Tribunal did not have jurisdiction to reduce the percentages set out in section 111.10 to what truly constituted essential services to be rendered during a strike. Referring to the principles set out by the Supreme Court of Canada in Saskatchewan Federation of Labour v. Saskatchewan3 (the “Saskatchewan decision”), the Unions contended that this regime did not minimally impair the rights granted by the Canadian Charter of Rights and Freedoms4 and the Québec Charter of Human Rights and Freedoms.5 The Attorney General countered that the legislator’s objective in adopting the provisions regarding the maintenance of essential services was to recognize the primacy of the population’s right to healthcare over the employees’ right to strike. The percentages set out in section 111.10 were not set at random, but rather were determined after learning from the situation that existed prior to the adoption of the provision. According to the Attorney General, the percentages were adapted so as to ensure that the necessary services were rendered. According to the Attorney General, there were major differences between the provisions at issue in the Saskatchewan decision and those in effect in Québec insofar as section 111.10 did not prohibit the right to strike, but only limited it. In this sense, contrary to the Public Service Essential Services Act6 in effect in Saskatchewan, this provision did not constitute a “substantial interference with collective bargaining” which had the effect of totally prohibiting the right to strike of the designated individuals. Moreover, the reduced effectiveness of the strikes alleged by the Unions was a result of their own decision to maintain services in all institutions across the board at 90%, notwithstanding the fact that section 111.10 allowed them to maintain lower levels of service in certain hospital centres and in the CLSCs (80% and 60% respectively). Basing himself on the Saskatchewan decision, Justice Flageole noted that the right to strike has risen to the level of a protected right under the Canadian Charter of Rights and Freedoms. Furthermore,in setting these minimum percentages, the Labour Code does not minimally impair the employees’ right to strike. Also, the fact that the application of these percentages is mandatory depending on the care unit and the category of service and there is no right of review of those percentages before a tribunal or independent body, “goes beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike”.7 According to the Tribunal, the situation created by section 111.10 is not very different from the situation which was considered in the Saskatchewan decision. Consequently, the Tribunal declared section 111.10 of the Labour Code to be constitutionally inoperative and gave the Québec government one year to revise it. We are following this matter closely and will keep you informed of any further developments. Syndicat des travailleuses et travailleurs du CIUSSS du Centre-Ouest-de-l’Île-de- Montréal – CSN et Centre intégré universitaire de santé et de services sociaux du Centre-Ouest-de-l’Île-de-Montréal, 2017 QCTAT 4004. Labour Code, CQLR c. C-27. Saskatchewan Federation of Labour v. Saskatchewan,  1 SCR 245. Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. Charter of Human Rights and Freedoms, CQLR c. C-12. Chapter P-42.2 of the Statutes of Saskatchewan, 2008. Paragraph 241 of the decision.
Victory for the managerial personnel of the Health and Social Services Network in Superior Court of Québec – What is the immediate takeaway?
On July 27, 2017, the Superior Court of Québec rendered a decision in favour of the managerial personnel of the Health and Social Services Network, concluding that the changes made to some of their working conditions by the Minister of Health were null and void.1 Background The Association des gestionnaires des établissements de santé et de services sociaux (“AGESSS”) is a professional union which represents senior and mid-level managerial personnel employed by the network. With its motion seeking a declaratory judgment and declaration of nullity, the AGESSS was not contesting the validity of the job eliminations carried out pursuant to the Act to modify the organization and governance of the health and social services network, in particular by abolishing the regional agencies, commonly referred to as Bill 10.2 However, the AGESSS was claiming that the amendments made pursuant to an order issued by Minister Gaétan Barrette which modified certain provisions of the regulations establishing the working conditions of managerial personnel of the network3 were null and void. Bill 10, which was assented to in February of 2015, stipulated that some of its provisions were to come into force on February 9, 2015, including section 189 which sought to eliminate certain managerial positions at a later date, specifically March 31, 2015. Under section 189 of Bill 10, [a]ny person referred to in this section whose position has been eliminated is not entitled to indemnities other than those provided under his or her conditions of employment.4 The remaining provisions of Bill 10 came into force on April 1, 2015. This includes perhaps most notably sections 135 and 136 of Bill 10, the latter of which stipulates that [i]f a position is eliminated because of a reorganization carried out pursuant to this Act, the maximum endof-engagement indemnity provided for in sections 116 and 124 of the Regulation may not exceed 12 months’ salary. Section 136 therefore had the effect of reducing the end-of-engagement indemnities payable to affected managerial personnel from 24 to 12 months of salary. Following the ministerial ruling on March 23, 2015, the working conditions were retroactively amended such that not only were the endof-employment indemnities reduced, but the total value of the amounts payable in the event an individual took pre-retirement leave could not exceed 12 months of salary (in both pre-retirement leave and end-ofengagement indemnity, if the manager elected to take it during his or her leave). However, this amendment came into force on March 23, 2015, that is, before the elimination of the positions imposed by Bill 10, which were to occur on March 31, 2015. This change brought about by ministerial ruling had the effect of amending Bill 10, among other laws passed by the government. The Protection of acquired rights principle The Minister explained that the purpose of this amendment was to correct a clerical error. The Court dismissed this argument, ruling that the statute was clear and did not contain any such error. That being said, the Superior Court accepted the arguments of the AGESSS and held that Bill 10 is consistent with the principle of the protection of acquired rights insofar as they do not retroactively affect the rights of affected individuals. Indeed, the conditions applicable to managerial personnel whose positions were eliminated by Bill 10 are those set out in the Regulation respecting certain conditions of employment as they existed on March 31, 2015, given that section 136 of Bill 10 (which had the effect of reducing the end-of-employment indemnity to 12 months) only came into force on April 1, 2015.5 As a result, the retroactive amendments made to the Regulation respecting certain conditions of employments on March 23, 2015 had the effect of amending Bill 10 and yet were not authorized by any provision of Bill 10 or the Act respecting health services and social services. Moreover, these amendments could not be valid as the Act did not give the Minister the power to amend a law passed by the government, and it certainly not provide the Minister the power to do so retroactively. Duty to consult Relying on a 1984 governmental decree which acknowledged the status of AGESSS as representative, the Superior Court confirmed that the Health Minister and its representatives had the duty to consult this association prior to changing the working conditions of the managers in the network. Furthermore, the absence of any consultation was found by the Court to be another reason why the amendments to the Regulation respecting certain conditions of employment had to be nullified as they were contrary to the liberty of association recognized by the Canadian Charter of Rights and Freedoms. However, the Court noted that the AGESSS did not contest the validity of Bill 10 on any basis whatsoever. More specifically, it did not raise any argument regarding mandatory consultation.6 Conclusions and recommendations Accordingly, the Court declared the ministerial order to be null and void and held that the end-of-employment and preretirement indemnities of the managers whose positions were eliminated by Bill 10 on March 31, 2013 must be determined in accordance with the Regulation respecting certain conditions of employment as it existed prior to the ministerial order. Depending on the factual situation of each manager, adjustments could therefore be claimed. However, the Minister and the government have 30 days from the judgment to apply for leave to appeal with the Québec Court of Appeal. AGESSS c. Gaétan Barrette, es qualités de ministre de la santé et des services sociaux et P.G. du Québec, C.S. 200-17-022087-159, July 20, 2017 (Honourable Suzanne Ouellet, S.C.J.) An Act to modify the organization and governance of the health and social services network, in particular by abolishing the regional agencies,, CQLR, c. O-7.2. Regulation respecting certain terms of employment applicable to officers of agencies and health and social services institutions,, CQLR, c. S-4.2, r. 5.1, hereinafter referred to as “Regulation respecting certain conditions of employment”. Last subparagraph of section 189 of Bill 10. Paragraphs 22, 68, 69, 74-82, 107 and 109 of the judgment. Paragraphs 132-133 and 135 of the judgment.