Under the Act Respecting Industrial Accidents and Occupational Diseases1 (the “Act”) the Occupational Health and Safety Commission ("CSST") has broad powers in all matters relating to work accidents and their aftermath. In the recent decision of Société des établissements de plein-air du Québec (“Sépaq”) vs. Québec Union Public Employees and Francine Beaulieu2 , the Quebec Court of Appeal reviewed an arbitration decision considering issues of reinstatement and accommodation following an absence due to a work accident.
The employee was a seasonal worker employed by Sépaq, a Quebec Government corporation which runs Québec's parks and certain tourist attractions. After he suffered a work accident and was absent from work, the CSST determined that he had a permanent disability, with functional limitations rendering him unable to return to any employment with Sépaq. The CSST did find him capable of doing certain light work, but no jobs for which he was qualified were available at Sépaq.
The employee did not appeal the CSST’s decision. Instead, the employee's union brought a grievance alleging that the employer had not fulfilled its duty to accommodate the employee and asked for reinstatement of the employee into his position. At the outset of the hearing before arbitrator Beaulieu, Sépaq raised a preliminary objection arguing that the issue raised by the grievance fell within the exclusive jurisdiction of the CSST, which had already rendered a decision. The arbitrator upheld the objection and declined to hear the grievance on the merits.
The Quebec Superior Court overturned the decision of the arbitrator holding that:
"When it comes time to verify whether an employer has fulfilled its obligation to accommodate an employee suffering from functional limitations following a work accident, this task falls to a grievance arbitrator because it calls into question the exercise of an employer’s management rights in the organization of its business."3 [our translation].
The Court of Appeal overturned the decision of the Superior Court and upheld the decision of the arbitrator, relying on section 349 of the Act, which reads as follows:
"The Commission [CSST] has exclusive jurisdiction to examine and decide any question contemplated in this Act unless a special provision gives the jurisdiction to another person or agency."
Given that the CSST had indeed decided that, as a result of the work accident, the employee was unable to return to his preaccident employment and that no other suitable employment was available at the employer, it agreed that the arbitrator had no jurisdiction over the grievance.
The Court of Appeal added that, although the provisions of the Quebec Charter of Human Rights and Freedom, are deemed to be part of all collective agreements, the Charter does not create a parallel regime allowing an employee to seek redress in respect of a situation which has already been the object of a decision of the CSST.
Given this decision of the Court of Appeal, it now seems clear that once the CSST has exercised its jurisdiction and decided the issues relating to an employee’s ability to return to work at the accident employer, either in the pre-accident employment or in a suitable position, the findings of the CSST will bind the parties. A grievance arbitrator will have no jurisdiction to adjudicate on the matters covered in the CSST’s decision.
