In a case involving the Syndicat de la fonction publique du Québec and the Société des établissements de plein air du Québec ("SEPAQ"),[1] an employee who held a position with SEPAQ as a day worker sustained an employment injury, resulting in permanent impairment and functional limitations. During the rehabilitation process, the Commission de la santé et de la sécurité du travail (the "CSST") found that, in view of these sequelae, the employee could not resume his pre-injury position as a day labourer, and that the employer had no suitable job available for him. Subsequently, the CSST found that a position as a customer service representative was suitable for the employee. The employee filed a grievance, asking for reinstatement in his pre-injury position as a day labourer, with accommodations.

The arbitrator found that he did not have jurisdiction to hear the grievance, as appears from the following excerpt from the arbitration award:

[TRANSLATION] "[54] With respect to the opposite opinion, I do not see how or by what means an arbitration tribunal could force an employer to give a position as a day labourer to an employee whose file has been assessed and reviewed by the CSST, all the more so when the latter, according to the evidence submitted, has assessed the grievor’s job and found he could no longer perform it."

Regarding the issue of accommodation under the Charter of Human Rights and Freedoms[2] (the "Charter"), the arbitrator pointed out that he would have jurisdiction to hear the case in the event of a dispute arising from the interpretation or application of the collective agreement, which was not the situation in this case. Indeed, according to the arbitrator, this was not a case where the conditions for the implementation of a return to work under the collective agreement were not met, but a question stemming from the CSST’s review and assessment of the file of an employee who had suffered an employment injury. The arbitrator found that the employer had not denied the employee a position, but simply took into consideration the CSST’s decision regarding the employee’s ability to perform that job.

A motion for judicial review of the arbitration award was brought before the Superior Court, which granted the motion on the basis that the arbitrator could not refuse to exercise her jurisdiction over the grievance.[3] According to that Court, once the CSST has ruled that a worker cannot be reinstated in his pre-injury position or in a suitable position, a grievance arbitrator has jurisdiction to determine whether the employer, in exercising its management rights, has done everything to accommodate the worker. The Superior Court added that an arbitrator does have such jurisdiction, even though the worker has been found by the CSST to be unable to hold his pre-injury job.

SEPAQ successfully appealed that decision. In a recent decision,[4] the Court of Appeal reversed the Superior Court’s decision and confirmed the arbitration award. The Court of Appeal pointed out that the employee had been deprived of his job as a day labourer due to functional limitations from an employment injury and not a personal condition in the nature of a handicap. According to the Court of Appeal, the arbitrator was right in declining jurisdiction, since the CSST and the Commission des lésions professionnelles have exclusive jurisdiction to rule on an employee’s ability to perform his pre-injury job or a suitable job following an employment injury. The arbitrator could not hear the employee’s request to be reinstated in his job as a day labourer when the CSST had already ruled that he was no longer able to hold that position. The Court of Appeal concluded, with a reminder, that the Charter does not create a parallel compensation system.

The application for leave to appeal was dismissed on September 10, 2009 by the Supreme Court of Canada.