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  • 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.

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  • The Supreme Court of Canada Confirms the Jurisdiction of Arbitrators to Decide if Grievances Based on Section 124 of the Arls are Admissible

    On July 29, 2010, the Supreme Court of Canada rendered three judgments in which five of the nine judges declared that grievance arbitrators have jurisdiction to decide whether employees who do not have job security and grievance rights under a collective agreement may file grievances based on section 124 of An Act respecting labour standards.In June 2008, the Court of Appeal, then seized of the same dispute, had concluded that the Labour Relations Board had exclusive jurisdiction over such grievances.Although this decision contains an elaborate and articulate dissent, the reasons of the majority set the tone to follow.Thus, and despite the provisions of a collective agreement preventing the filing of a grievance in cases of termination of employment, an employee having two years of uninterrupted service could base himself on section 124 of the ARLS to institute his recourse before an arbitrator.The Court was nevertheless unanimous in rejecting the theory of implicit incorporation of a standard public order. 

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  • Despite a Recent Judgment of the Superior Court Pertaining to Employees Hired Through an Employment Agency, the Agency may be the True Employer, Depending on the Circumstances

    On December 2, 2009, The Superior Court upheld a decision of the Commission des relations de travail which concluded that nurses hired through an employment agency were employees of the health-care facility and, therefore, covered by the bargaining certificate of the union in question.However, the case of Syndicat des professionnelles en soins du CSSS de la Montagne (FIQ) v. Centre de santé et de services sociaux de la Montagne provides a different perspective on the same issue of determining who the employer of employment agency personnel is by assessing the situations of the relevant employees separately according to the respective structures and management methods of different agencies used by the same employer

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  • The Hydro-Québec Case: The Supreme Court Confirms That There are Definitive Limits to an Employer's Duty to Accomodate

    On July 17, 2008, the Supreme Court of Canada rendered a unanimous judgment setting aside the ruling by the Quebec Court of Appeal and affirming that the employer had fulfilled its duty to accommodate in the case of Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ).In this judgment, the Court essentially dealt with two aspects. It analyzed the concept of “undue hardship” in order to clarify the employer’s burden of proof, and to limit this burden based on the circumstances specific to each dispute. In addition, the Court reiterated that an employer’s duty to accommodate must be assessed globally commencing from the start of the employee’s disability period.In a nutshell, the principles set out in this judgment are of interest to employers, unions and employees, as well as to the courts called upon to determine the practical details of a duty to accommodate on a day-to-day basis. However, the conclusions reached with regard to the facts of the dispute demonstrate that there are definite limits to the reasonable duty to accommodate.The Supreme Court of Canada recognized that for several years Hydro-Québec had tried to adjust the complainant’s working conditions to her situation (the physical layout of her workstation, a part-time schedule, assignment to a new position, etc.). Moreover, the employer demonstrated that despite these accommodations, given the employee’s chronic absenteeism, she could not return to work in a reasonably foreseeable future and, in this context, it had met its burden of proof and established the existence of undue hardship if further accommodations were to be required.In our newsletter, we have analyzed the principles of reasonable accommodation established in the McGill University Health Centre case as well as in the context of the dispute in the Hydro-Québec case and, in so doing, have singled out the decisive elements of this recent Supreme Court judgment relating to the demonstration of undue hardship and the time period during which reasonable accommodation should be assessed.

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  • Discrimination at work: Grievance Arbitrator or Human Rights Tribunal of Quebec... The debate rages on!

    On November 30, 2006, the Human Rights Tribunal of Quebec released a judgment in which it concluded that a grievance arbitrator did not have jurisdiction over litigation stemming from allegations of employment discrimination.In the case of Commission des droits de la personne et des droits de la jeunesse v. Procureur général du Québec (D.T.E. 2007T-61) the Human Rights Tribunal ("HRT") held that it (the Tribunal) "constitutes a more appropriate forum for the dispute" and that, accordingly, the jurisdiction of the grievance arbitrator could not take precedence.This interlocutory judgment of the HRT was the subject of an application for leave to appeal, which was dismissed by a Judge of the Quebec Court of Appeal.An employer who is the subject of an investigation by the Human Rights Commission should, therefore, remain vigilant if the Commission intends to assert jurisdiction over litigation concerning employment discrimination involving a unionized employee.Indeed, the conclusion of this recent judgment of the HRT is based on certain specific circumstances and may not exclude the general principles established by the courts of justice with respect to the specialized jurisdiction of grievance arbitrators.

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  • Absenteeism and the obligation to accommodate: When the employer is required to consider the measures recommended by the medical experts

    In a judgment rendered on February 7, 2006, the Quebec Court of Appeal reiterated the obligations of the employer and the employee to play a role in seeking a reasonable accommodation. In cases where a collective agreement exists, the union has the same obligation.More specifically, the Court of Appeal required that all the measures envisioned by the different medical experts consulted in the months preceding the administrative dismissal be considered by the employer, and that evidence of such analysis be presented when it is being judicially determined whether the termination of employment for excessive absenteeism should be maintained, regardless of the employer’s undeniable patience and tolerance in previous years.

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