Le règlement des différends touchant l'exercice du pouvoir disciplinaire de l'employeur, y compris le renvoi The Settlement of Disputes as to the Use of Disciplinary Power by the Employer, Including Dismissal

Sommaire

Dans le présent article, l'auteur étudie le régime du règlement des conflits d'ordre disciplinaire au Québec. En analyse les sources, les principes généraux ainsi que les différentes techniques, arbitrales et judiciaires qui y ont cours présentement. Il fait, à l'occasion, les comparaisons qui s'imposent à l'égard du droit français du Travail en la matière.

Summary

In Quebec, as in the Anglo Canadian provinces governed by British Common Law, there exists no specific provision concerning the disciplinary powers of the employer in labour relations. In Anglo Canadian Common Law as well as in Quebec Civil Law, the employer's disciplinary powers have been implicitly considered as naturally added to the individual labour contract.

The present sources of the employer's disciplinary power are: the individual labour contract, the interior settlement policy of the firm, collective agreements and statutory labour laws.

Whatever may be the theory, (contractual or statutory) adopted to analyse the disciplinary functions of business management, there remains in practice that wherever there is no collective agreement, the general principles governing these functions are reduced to what seems a trifle: it is the relations based on force, the « power » relations, that control in fact management's supremacy in a given field, under the benevolent protection of the laws concerning the traditional labour contract.

Thus, in the vast majority of dismissal cases in the traditional organization, the matter of the necessary « cause » is not even contemplated. The real distinction between penalty dismissal and dismissal under the right of unilateral annulment was brought, so to speak, by unionism and collective bargaining.

These requirements of collective bargaining relating to the employer's disciplinary powers have brought, as a result, the formulation and the application, by our arbitration tribunals, of a certain number of general principles that may be stated as follows. In the first place, the chief of a business is explicitely allowed the right to pass and to enforce rules of conduct, for the direction of his business, to which are submitted the employees, and to sanction such rules by means of disciplinary penalties, if necessary. In applying these penalties, the employer must however proceed « reasonnably » and according to equity. To this end, he cannot act but for a suqicient cause, taking the circumstances into consideration in each case. Consequently, this requires that the investigation of disciplinary faults be done under equity rather than under the rule of strict law. Thus, not only must there be fault or breach of duty on the employee's part, but moreover, the sanction must be appropriate to the gravity, somewhat like in penal law.

It is thus principally concerning the notion of disciplinary fault, the possible corresponding sanctions, and the appraisal, the supervision and the revision of sanctions, that the general principles derived from arbitration practice in Quebec differ from and even are opposed to those of Common Law.

The disciplinary fault is no longer considered as emanating from the labour contract. It may vary infinitely, but must, necessarily, be considered in relation with its effects on the common good of the labour society made up by the establishment or the business. Thus, to become the object of disciplinary sanctions, an employee's action, if it is done outside the place and the hours of work, must, directly affect the business in its technical, commercial, or simply social (in certain cases) efficiency.

A whole gamut of possible sanctions are accepted by our arbitration system, the most important of which are the following: the transfer from one occupation or from one department to another; the reduction to a lower rank in the seniority list; the loss of certain social benefits such as accumulated sick leave, the choice of holiday periods, etc.; temporary suspension coupled or not with the loss of seniority and of certain other accumulated rights; finally, the dismissal with or without allowance.

Finally, the author describes and analyses the following different settlement techniques:

• The settlement of dispures concerning personnel representatives — Absence of distinction between « personnel representatives » and ordinary wage earners in Quebec's Labour Laws.

• The « professionnal » settlement within the professionnal organization. — Absence of such a regime in Quebec.

• The « administrative » settlement — Characteristics and deficiencies.

• The « professionnal » settlement within the business organization.

• The settlement through legal means.

About the first technique, the author insists that there does not exist in Quebec, nor anywhere else in Canada or in the United States, any paritcular statutes legally applying to certain categories of employees, such as is the case in France, for example, about personnel representatives. No difference is made in our Labour laws between ordinary wage earners and personnel representatives affected by a particular legal status in the field of labour relations. This is due to the fundamental differences existing between the two systems of industrial relations. In Quebec, wage earners only have official representatives when they are unionized and when the union to which they belong is « recognized » by the Labour Relations Board through a certificat of recognition, certificate of a given bargaining unit and forces the employer to negotiate with it, or still if this union is recognized de facto by the employer and negociates with the latter on a contractual and somehow « private » voluntary basis.