Labour and employment law – August 2024

The arbitration tribunal (the “tribunal”) held that an employer was justified in rejecting a complainant’s request for tuition reimbursement on the grounds that the proposed program was extremely costly, that a less expensive option was available, and that the employer was subject to budgetary constraints.

This was the finding in the ville de montréal case[1], in which the union, representing a lawyer working for the city, contended that the city’s rejection of the lawyer’s request for reimbursement of tuition fees contravened clause 28.02 of the collective agreement, which provides as follows:

[translation:]

28.02  the city agrees to reimburse any permanent legal practitioner, upon presentation of a certificate of success or, in the absence of an examination, a certificate of attendance, half the tuition and registration fees for any course of study approved by the city before the course begins and which course is related to the nature of the work performed by the legal practitioner, or which may enable him or her to attain a more senior position.

The city has a tuition reimbursement program (the “program“) aimed at encouraging and promoting the professional development of its employees. It is administered in accordance with an established administrative policy that sets out the criteria for accepting reimbursement requests. The employer’s application of that policy resulted in the refusal of the claimant’s request on the grounds of the costliness of the proposed training program and the existence of a much less expensive alternative.

In the arbitration proceedings, the union contended that once the criteria of clause 28.02 of the collective agreement are met, the employer is obliged to approve the chosen course of study and reimburse half the costs incurred. The union further maintained that the employer’s decision was unreasonable and arbitrary as it was based on criteria unrelated to the clause in question. The employer also argued that apart from the course relevance criterion of clause 28.02, parameters for approving a course also had to be considered, and as the parties had not defined those parameters, they were at the employer’s discretion in the exercise of its management rights. The employer concluded that, pursuant to its existing policy, it could legitimately refuse the complainant’s request on the grounds of the high cost of mcgill university’s mba program.

After conducting its review and analysis, the tribunal’s held that clause 28.02 did not entitle the complainant to reimbursement of tuition for work-related training solely because it could facilitate his advancement to a more senior position. A further condition had to be met, namely prior approval of the course in question in accordance with criteria determined at the employer ‘s discretion in accordance with its recognized management rights.

The arbitrator noted that the criterion of cost was on the course approval form for the purposes of applying clause 28.02. Consequently, he considered it reasonable to conclude that cost was one factor among several to be considered or weighed by the employer in deciding to accept or refuse a request. According to the evidence, half the tuition fees reimbursable by the employer for an mba at mcgill university amounted to at least $51,500, after taking into account the scholarship awarded to the complainant, provided that he maintained a b+ average. In the arbitrator’s opinion, this sum was excessive compared to the $9,000 charged by hec montréal.

The tribunal held that the employer’s decision was not the result of arbitrary and automatic application of its policy, but rather of a particularized analysis of the complainant’s request, and that its decision was reasonable and based on relevant criteria in line with the program’s objective. According to the evidence, each of the city’s administrative units was allocated a training budget of between $5,000 and $15,000. In the arbitrator’s view, had the employer approved the complainant’s request, the entire budget would have been spent on him alone, which runs counter to the program’s objective, which is to encourage and foster the development of as many city employees as possible, not just one.

Therefore, the arbitration tribunal dismissed the union’s grievance.

The administrative labor tribunal refused to recognize the employee status of two environnement routier nrj inc. Drivers on the grounds that their jobs were partially devoted to management tasks[1].

In the application filed by the syndicat des chauffeuses et chauffeurs de matières recyclables d’environnement routier nrj sherbrooke – csn  to represent all drivers employed by the company, a disagreement arose between the union and the employer regarding the status of two drivers. The union argued that they should be excluded from the bargaining unit, while the employer argued that they should be included.

The tribunal ruled in favor of the union, holding that although most of the time mr. Godhue and mr. Sage perform the same duties as other drivers, their responsibilities, which included supervising other drivers and making operational decisions, positioned them as employer representatives, which therefore excludes them from “employee”  status under the labour code.

The court reiterated that exclusions from “employee” status must be interpreted restrictively.  Although their various management tasks are ancillary to their main work, they warranted application of the exception on the grounds that the tasks are regular and integrated into their jobs.

As a result, the union was only certified to represent drivers with no management duties.

The administrative labor tribunal held that a car accident involving a patient  care attendant on her way to a covid-19 testing clinic was work-related.

In gornicka and centre intégré universitaire de santé et de services sociaux de l’est-de-l’île-de-montréal – centre hospitalier de soins de longue durée marie-curie-sklodowska^[1], the worker was involved in a car accident while on her way to a covid-19 testing clinic. She sustained a neck injury commonly referred to as whiplash.

The worker filed a claim with the cnesst but her claim was refused on the grounds that the time between the accident and when she submitted her declaration to her employer did not allow for a finding that the worker’s whiplash and major depression arose while performing her tasks or in the course of her work. The worker contested that decision before the tribunal.

The tribunal held that the car accident involving the worker was a sudden and unforeseen event that had occurred in the course of her work. The tribunal considered the following criteria:

• The location of the event;
• The time of the event;
• The remuneration for the activity engaged in by the worker at the time of the event;
• The existence and degree of the employer’s authority or subordination to the employer if the event does not occur on the employer’s premises or during working hours;
• The purpose of the activity engaged in by the worker at the time of the accident, whether incidental or ancillary to, or optional in, the worker’s conditions of work;
• The connection and relative usefulness of the activity engaged in by the worker in terms of performing his or her job.

The tribunal stated that none of the above criteria are decisive; they must be considered on a case-by-case basis. However, the tribunal stated that it paid particular attention to the last two criteria, namely the purpose of the activity engaged in by the worker at the time of the accident, and the connection and relative usefulness of that activity in terms of performing his or her job.

The worker stated that the accident occurred after her shift. According to the employer’s covid-19 testing requirements and procedures in effect at the time of the accident, the worker was required to be tested three times a week because she was not vaccinated against covid-19, and because, given the limited time available, testing had to be done before or after work.

The tribunal also noted that the procedure for registering for thrice-weekly testing was provided by the employer, that the worker was required to send a printout of her health record booklet to her manager every week, that if she failed to undergo testing, the worker would not be permitted to work and that the employer would regard this as an unauthorized absence, that the worker was paid a covid-19 testing premium equal to one hour’s work and, lastly, that the accident occurred 15 minutes after the end of her shift.

The tribunal therefore held that the purpose of the activity engaged in by the worker at the time of the accident was to go to the clinic for covid-19 testing in order to satisfy a requirement related to her work as a patient care attendant, that therefore there was a connection between the activity engaged in at the time of the accident and her work, and that, as a result, she was at work at the time of the accident.

Lastly, the tribunal only accepted the diagnosis of whiplash, as the evidence showed that the psychological symptoms resulting in the diagnosis of major depression were related to a family situation and had begun several months before the accident.

The tribunal therefore allowed the worker’s claim for whiplash.

On may 23 of this year, the administrative labour tribunal (the “alt”) ruled on an employer’s application for a transfer of an imputation of costs on the grounds of the gross and wilful negligence of the particular worker who had suffered an employment injury[1].

The employer filed its application for a transfer of a specific imputation of costs in july 2021, i.e., before the coming into force of amendments to the act respecting industrial accidents and occupational diseases (referred to as the  “aiaod“), specifically the amendment to section 327 of the act which, as of october 6, 2021 provided that the cost of benefits due for an employment injury recognized under section 27 of the aiaod was to be imputed to employers of all units, despite the fact that the injury arose as a result of the worker’s  gross imputation and wilful negligence.

As the application for the transfer had been made before the amendments came into force, the tribunal analyzed it pursuant to section 326 of the aiaod, with the employer arguing that it had been unfairly burdened by the cost of benefits.

The evidence showed that the worker, a nurse required to travel to various destinations as part of his job, had left his home in brossard, and was heading to matagami where he was to fulfil a two-month contract at a medical clinic.

The employer had recommended two routes for getting to that location, both of which involved taking main roads. Those routes had been indicated in a training course by the employer, in accordance with the governing policy to that effect. However, according to the evidence, instead of taking either of the recommended routes, the worker decided instead on a third shorter route not indicated by the employer and which involved driving on a forest road in an area without cell phone coverage.

While on that road, the worker took a bridge closed to traffic and his vehicle became stuck in a precarious position and he was forced, in the middle of winter, to leave his car. He subsequently died of hypothermia.

The report issued as a result of the coroner’s inquest and the report issued by the commission des normes, de l’équité, de la santé et de la sécurité du travail attributed the worker’s accident and employment injury to his non-compliance with the rules and to his own initiative regarding the route taken.

Based on the evidence, the alt considered that there was preponderant evidence establishing that the employer had been unfairly burdened with the costs of benefits and it granted the transfer of the imputation of those costs to employers of all units.

The court of québec ruled on an application from the cnesst based on section 41.1 of the labour standards act, which prohibits employers from remunerating an employee at a lower wage rate than that paid to other employees performing the same tasks, in particular because the employee usually works fewer hours[1].

Citing a labor shortage problem, the employer, a social economy enterprise in home care, had decided to offer a $2/hour premium only to its home care attendants available at least 30 hours a week. According to the evidence, the duties of all home care attendants were the same.

The employer explained that it had been forced to lay off several employees because of the pandemic and newly implemented government health regulations, and that it wanted to find a way of motivating its employees to come back to work for it. As a result, employees who were available 30 hours a week or more were paid a $2/ hour premium, prorated to the number of hours worked.

Relying on the [french] definitions of ” taux de salaire”  [wage rate] and “prime” [premium] in the dictionnaire canadien des relations de travail[2], the court of québec held that the supposed premium paid was actually a wage rate increase and that the employer had not provided any justification that allowed for a finding that the employees were, for example, being compensated for certain inconveniences related to their work in terms of timing or duration, according to the dictionary definition of premium.

The court found that the employer had created two categories of employees, i.e., full-time and part-time, based on their availability, in contravention of section 41.1 of the labour standards act. Consequently, two employees who work the same number of hours in a given week will not receive the same wage rate. The court therefore only partly upheld cnesst’s claim, given that part of its claim was time-barred.