In general, collective agreements exclude employees who have a precarious status (employees who are casual, probationary, temporary, on a priority list, etc.) from recourse to grievance proceedings in the event of dismissal. However, if such employees have two years of continuous service, they are entitled to a wrongful dismissal recourse provided for in Section 124 of the Labour Standards Act[1] (hereinafter the "L.S.A.").

In a number of decisions rendered on June 2, 2008[2], the Court of Appeal held that the Commission des relations du travail (hereinafter the "C.R.T.") has sole jurisdiction to rule on complaints submitted by unionized employees pursuant to that section.

In all these cases, employees with a precarious status, but with two years of continuous service, had their employment terminated. Grievances were filed on their behalf by their unions.

The employers raised preliminary exceptions based on the grievance arbitrator’s lack of jurisdiction to rule on the application of Section 124 L.S.A. In support of the arbitrator’s jurisdiction, the unions argued that the said section is implicitly incorporated into collective agreements.

Much like the debate that has been going on for several years, the arbitrators took different positions. In some arbitral awards, the arbitrators held that they had jurisdiction to rule on Section 124 L.S.A.[3], while others were of the opposite view[4].

In all but one decision[5], the Superior Court ruled that Section 124 L.S.A. is not implicitly incorporated in the collective agreement and therefore that only the C.R.T. has jurisdiction to apply that provision[6].

The Court of Appeal had to decide the following: should complainants exercise their recourse under Section 124 L.S.A. before a grievance arbitrator or before the C.R.T.?

To answer this question, the Court of Appeal had to determine whether this provision is implicitly incorporated in collective agreements.

The first paragraph of Section 124 L.S.A. reads as follows:

An employee credited with two years of uninterrupted service in the same enterprise who believes that he has not been dismissed for a good and sufficient cause may present his complaint in writing to the Commission des normes du travail or mail it to the address of the Commission des normes du travail within 45 days of his dismissal, except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement.

The Court of Appeal ruled that Section 114 of the Labour Code[7] vests sole jurisdiction in the C.R.T. for ruling on a complaint filed under Section 124 L.S.A. Furthermore, the Court found that the lawmakers clearly did not want this provision integrated into collective agreements.

Accordingly, a grievance arbitrator must declare that he has no jurisdiction or find the grievance inadmissible when seized of a complaint based on Section 124 L.S.A., unless it was explicitly incorporated by the parties in the collective agreement.

These decisions have not been appealed to the Supreme Court. As such, they have put an end to a debate that has divided tribunals for many years.