Congédiement pour activité syndicale – évolution des décisions A Study of Decisions Respecting Dismissal for Union Activities

Résumé

Dans cet article, l'auteur analyse les jugements du Tribunal du travail du Québec en matière de congédiement pour activité syndicale.

Abstract

In this article, the author attempts a study not only of legislative texts dealing with dismissal for union activities in Québec labour legislation since 1960, but also of the jurisprudence related to the numerous decisions handed down on the subject by the Québec Labour Relations Commission, and also by the Investigating Commissioners and the Labour Court.

Provisions respecting dismissal for union activities were first included in the Labour Relations Act at the end of 1959. Basically, these provisions provided for the rehiring of workers dismissed for union activities, and obliged employers to prove that the worker had been dismissed for some other just and sufficient reason and not for union activities or for the exercice of a legal right. These provisions, with few changes, were included in the Labour Code published September 1, 1964.

Since the introduction of these sections into the labour laws, thousands of decisions have been handed down ; decisions which have created many problems and given rise to quite varying interpretations.

The author has tried to come to grips with the underlying reasons for these interpretations and, as far as the « other just and sufficient reason » is concerned, he mentions two schools of thought on the subject. One school holds that the person called upon to hand down a decision should not substitute his judgment for that of the employer, and the second school holds that, on the contrary, this person should carefully assess the nature of the « other just and sufficient reason ». According to the author, the problem is not easily resolved. It is obvious, however, that prevailing ideas in society concerning unions and the behavior of their leaders, does have a certain influence on decisions which are handed down.

As for the reasons given by employers for dismissing workers, the author treats those where employers cite : economic and technological causes, the influence of the employee's service record on decisions, ignorance of the employee's union activities, the weight of circumstance related to the dismissal (which causes the author to wonder if, in order to establish presumption, one has only to consider the union activities of the employee or also the propaganda and recruiting going on in the industry at the time of dismissal), delays incurred between the moment the offense was committed and the dismissal, and lack of work and other economic reasons for not recalling a worker who has been laid off.