Workplace Wire

Desjardins v. Tessier Ltée involved a reprisal complaint under the Act Respecting Labour Relations, Vocational Training And Workforce Management In The Construction Industry (the “Labour Relations Act”).

The employer had contracted with mining company Canadian Royalties Inc. to provide cranes and operators on a construction site located in northern Québec.

The complainant, Desjardins, was a crane operator assigned to this site. He also happened to be a union steward.

In October 2011, Desjardins participated in a province-wide protest against Bill 33, An Act To Eliminate Union Placement And Improve The Operation Of The Construction Industry, which has since become law. (Among other things, this law provides for the end of union placement such that union associations and employers’ associations that wish to refer employees must do so through the Commission de la construction du Québec, after obtaining a licence to do so. It is prohibited to attempt to force an employer to hire specific employees or a specific number of employees).

During two days of work stoppage in October 2011, Desjardins circulated a petition among co-workers, addressed to the Premier of Québec, about what he saw as an overrepresentation of New Brunswick workers at the mine. He denounced this situation as going against previous statements of the government, which he had understood to mean the project was first and foremost for Québec workers.

As a result, the mining company required that the complainant no longer work on the project. The complainant’s employer decided that his involvement in the protest had damaged its relations with its client, and the complainant was laid off. Subsequently he was offered another assignment elsewhere, which he rejected.

The complainant alleged that the employer’s actions amounted to a reprisal due to union activity, specifically seeking to encourage the hiring of local labour.

The Commission des relations du travail (“CRT”) found that the complainant’s association rights were in play, that he experienced a layoff during the exercise of union rights and that accordingly the employer had the burden of proving that it had just and sufficient cause for its actions, which were not a mere pretext for anti-union activity.

The employer invoked its management rights and said it was required to remove the complainant from the worksite because of his public criticism.

The CRT agreed with the employer that circulating the petition did not constitute protected union activity but rather personal political activity.

The duties of a union job-site steward are defined in article 86 of the Labour Relations Act to include the following:

(a) The job-site steward is an employee of the employer and as such, he must furnish a reasonable amount of work, taking his union duties into account.

(b) As job-site steward he may, during working hours, without diminution of salary but only after notifying the employer’s representative, inquire into the disputes concerning the application of the collective agreement and discuss them with the employer.

(c) The time allocated for the union activities of the job-site steward shall be agreed by the employer and the job-site steward, taking into account the number of employees that he represents, but it shall not exceed three hours per working day.

(d) If, by exception, the job-site steward must leave his work for a period longer than that fixed by agreement, he must account for his prolonged absence to his employer.

(e) Except in the case of a prolonged absence accounted for as required by subparagraph d, the job-site steward is not entitled to wages for union activities beyond the agreed time.

(f) On the job site, the job-site steward must limit himself to doing his work for the employer and carrying out the functions of job-site steward determined by law.

The CRT found that nothing in this article confers on the complainant the political role of requiring jobs for Québec workers, whether in general or in the mining industry in particular.

According to the CRT the client request was the triggering event for the complainant’s transfer. The complainant himself said that the transfer was only due to his having circulated the petition criticizing the hiring policy of the mining company. Accordingly the employer showed a just and sufficient cause for transferring  the complainant, namely the requirement of its client.