It's just around the corner, the time when we take stock of the year that's drawing to a close and look ahead to the year to come. In order to inform employers under provincial jurisdiction, we are offering you a Labour Law Review of the Year. The countdown has begun!
10, 9, 8… Telework
Much has been written again this year about telework, which was widely adopted during the pandemic and is still in effect in many businesses today:
- Use of teleworking employees during a strike or lockout: Anti-strikebreaker provisions were the subject of jurisprudential controversy in 2023. On the one hand, the Superior Court rejected the interpretation of “deployed establishment”1 introduced by the Administrative Labour Tribunal (ALT) and refused to extend the prohibition on using strikebreakers to remote working employees.2 The court held that the employer did not violate the Labour Code by using the services of an employee working from home who was not part of the locked-out unit to perform the work of the locked-out employees. However, in another case,3 the same tribunal came to a contrary conclusion and validated the notion of “deployed establishment.” The Court of Appeal will therefore have to rule on the matter in the coming year.4
- Applicability of Quebec laws: The Superior Court determined that the Act respecting labour standards did not apply to an employee working remotely for an American company that had no office or operations in Quebec.5 This decision was also appealed.6 You can read our analysis here.
- Mandatory attendance at work: A grievance arbitrator found that the employer was justified in requiring its employees working from home to be present at the office one day a week.7 In fact, determining the place of work fell within the employer's management rights, which it had exercised reasonably.
7, 6… Fundamental rights
At the end of a year marked by public sector strikes, we must mention one of the decisions handed down on freedom of association:
- Wearing non-compliant pants as a pressure tactic: The Superior Court struck down the legislative provisions prohibiting police officers from altering their uniforms by wearing colourful pants as a pressure tactic.8 In the court's view, this prohibition infringed their freedoms of expression and association.
This decision also bears mentioning:
- Inclusion of a discriminatory clause and liability of a union: The Superior Court ordered a union to compensate an employer for the entire amount the employer had to pay his employees covered by a clause in a collective agreement that was deemed discriminatory on the basis of age.9 The discriminatory clause had been added to the collective agreement following a bad-faith request by the union, which subsequently intended to then contest the clause by grievance and claim damages from the employer. You can read our analysis here (available in French only).
5… Termination of employment
While an employer can terminate an employee without cause, this decision from the past year contains some caveats to keep in mind:
- Duty of good faith in dismissals: The Court of Appeal reiterated that how an employer carries out a dismissal can have an impact on the reasonable notice period, as well as on the damages to which the employee may be entitled. In the circumstances of this case, the court concluded that the lack of transparency regarding the reasons for a senior executive's dismissal had contributed to the difficulty of finding new employment. As such, this factor could be considered by the court in calculating the reasonable notice period to be granted to the former employee. The court also determined that the former employee was entitled to additional damages, since the employer had committed an abuse of rights, notably by abruptly terminating his employment and refusing to provide him with a letter of recommendation. You can read our analysis here (available in French only).
4, 3… Occupational health and safety
In this area, companies have major responsibilities, as this decision reminds us:
- Criminal offence: The Court of Appeal has upheld the guilt of a company accused of criminal negligence causing death.10 In this case, a truck driver died following an accident resulting from grossly deficient maintenance of the truck's braking system. This decision is a reminder that a company may be found guilty of committing a criminal offence if it fails to take the necessary measures to protect the health and safety of its workers. You can read our analysis here (available in French only).
2, 1… Non-competition
Finally, the following decision is worth considering before instituting proceedings to enforce a non-competition clause:
- • Unreasonable contractual commitments and abuse of rights: The Superior Court ruled that a company had committed an abuse of rights by instituting injunctive proceedings against a former employee, even though it knew that the non-competition clause it was trying to enforce was invalid because it was not limited to what was necessary to protect its legitimate interests11. In particular, the company was ordered to reimburse all the fees incurred by its former employee in defending himself.
What to watch for in 2024
Over the coming year, we'll be keeping an eye on the following events in particular:
- Unionization of first-level managers: Last April, the Supreme Court of Canada held a hearing in Association des cadres de la société des casinos du Québec c. Société des casinos du Québec12. We are therefore awaiting the decision of the country's highest court, which could rule on the right to unionize first-level managers in the coming year.
- Bill 42: On November 23, the Quebec Minister of Labour tabled Bill 42, An Act to prevent and fight psychological harassment and sexual violence in the workplace. Among other things, the bill would amend the Act respecting industrial accidents and occupational diseases, the Labour Code, the Act respecting labour standards and the Act respecting occupational health and safety. We will be following this bill’s progress through the National Assembly, and will watch for any amendments that might be adopted.
- Artificial intelligence: Artificial intelligence will surely continue to be a topic of discussion in 2024 too. With legislative initiatives tabled in certain US states and in Ontario in order to provide a framework for using artificial intelligence in employment decisions, it will be necessary to see whether these new developments will have an impact on the Quebec legislator.
