Although employment injuries fall under the jurisdiction of the CSST, an arbitrator appointed under a collective agreement retains jurisdiction to rule on the interpretation and application of certain collective agreement provisions, particularly employment injury provisions dealing with readaptation and return to work that are more advantageous than those set forth in the AIAOD.
That ruling was handed down by the Court of Appeal in McGill University v. McGill University Non Academic Certified Association, while qualifying however that the arbitrator is bound by CSST rulings rendered pursuant to its exclusive jurisdiction.
The facts
The employee, a communications technician, suffered an employment injury that caused a permanent functional disability.
The CSST ruled that the employee no longer had the capacity to hold his pre-injury employment position. It also ruled that if no other suitable employment could be found with the employer, it would determine suitable employment for the employee elsewhere in the job market.
Notwithstanding the CSST decision that had determined suitable employment elsewhere in the job market, the employee was assigned to various light job duties with the employer over a five year period. Subsequently, management dismissed the employee as the suitable employment position determined by the CSST didn’t exist within its establishment.
The union subsequently challenged this dismissal by way of a grievance procedure. It should be mentioned that the collective agreement contained a clause that specified that “the employee who regains his or her capacity to work, but who suffers from a permanent disability that prevents him or her from occupying a previously-held position, “…shall be reassigned, without any job posting, to another position suitable for his or her health, based upon available job positions.”
The employer took the view that the arbitrator was not entitled to rule on the grievance as that would require a review of the findings of the CSST on an issue involving capacity to work and the right to return to work. The arbitrator declined jurisdiction, concurring with the arguments of the employer.
The Court of Appeal ruled that the AIAOD allows parties to a collective agreement to include provisions that are more beneficial than those provided by law.
The grievance arbitrator therefore enjoys exclusive jurisdiction to rule on the issue as to whether an agreement contains such a provision, and where applicable, jurisdiction over its interpretation and application. That said, the arbitrator remains bound by determinations made by the CSST.
The Court of Appeal wrote as follows :
“[116] Nor does this interpretation contradict the A.O.A.I.D: when the CSST determines the issue of suitable employment, it is not forcing a worker to hold this job position for the remainder of his or her professional career. So, it doesn’t prevent the worker from finding a position that is other than what was deemed suitable (whether with the employer or otherwise).
[117] Consequently, nothing prevents the parties,as they have done in the present case, from agreeing to another provision which expands the right of return to work of an employee by forcing the Employer to offer to the employee any employment which he is capable of doing, notwithstanding the fact that it is employment beneath the level of the employment deemed to be suitable by the CSST.”
The Court therefore dismissed the appeal, ruling that the arbitrator had jurisdiction to apply the most advantageous provisions and concluded that the provision at issue was in fact more advantageous than that provided for under the AIAOD.
Our comments :
Under the AIAOD, suitable employment has to satisfy certain conditions, particularly that of corresponding to the interests and professional qualifications of the employee while taking into account the functional disability.
So, an administrative technician should not be offered a position as a caretaker, which doesn’t correspond to his or her professional qualifications. Nor should a beneficiaries attendant be offered a job as a cook, for the same reason.
In the present matter, the collective agreement stipulated that an employee who recovered sufficiently to return to the workplace, but who suffered a permanent functional disability, preventing him from holding his pre-injury position, would have the option of being replaced without the required job posting, to another job position, that his state of health allowed him to hold, taking into account the number of available positions to be filled.
This provision thus offered the employee more options and was consequently more advantageous than the plan offered by the CSST with respect to readaptation and return to the workplace : it allowed for the possibility of being replaced elsewhere than in a position that already takes into account his professional qualifications.
The range of possibilities open to the employee was thus broader than those afforded by the definition of « suitable employment », as the collective agreement provision went above and beyond what was provided under the Act.
We can conclude that an arbitrator may on occasion have jurisdiction — in very specific cases – to hear a grievance when the collective agreement provides for more generous employer obligations than those set forth in the AIAOD.
In the wake of the Caron decision, rendered by the Court of Appeal during early Summer 2015, the CSST and the CLP now have the power to verify whether a company has fulfilled its duty to accommodate employees within the framework of the readaptation process under the AIAOD, in the light of the Charter. The employer is no longer deemed to have fulfilled its duties by merely indicating whether it has or doesn’t have suitable employment within the company.
Under these circumstances, we can speculate that it will be fairly infrequent that a clause under a collective agreement will be more advantageous than the process of reintegration provided for under the AIAOD, that already has to take into account the Charter and the employer’s duty to accommodate.
Generally speaking, we advise employers to be vigilant whenever they are negotiating the provisions of a collective agreement dealing with the return to the workplace of an employee who has suffered an employment injury, in order to avoid assuming additional liabilities over and above the comprehensive plan already offered in the field of readaptation.
Full citation of the decision : Université McGill v. McGill University Non Academic Certified Association (MUNACA), 2015 QCCA 1943
Although employment injuries fall under the jurisdiction of the CSST, an arbitrator appointed under a collective agreement retains jurisdiction to rule on the interpretation and application of certain collective agreement provisions, particularly employment injury provisions dealing with readaptation and return to work that are more advantageous than those set forth in the AIAOD.
That ruling was handed down by the Court of Appeal in McGill University v. McGill University Non Academic Certified Association, while qualifying however that the arbitrator is bound by CSST rulings rendered pursuant to its exclusive jurisdiction.
The facts
The employee, a communications technician, suffered an employment injury that caused a permanent functional disability.
The CSST ruled that the employee no longer had the capacity to hold his pre-injury employment position. It also ruled that if no other suitable employment could be found with the employer, it would determine suitable employment for the employee elsewhere in the job market.
Notwithstanding the CSST decision that had determined suitable employment elsewhere in the job market, the employee was assigned to various light job duties with the employer over a five year period. Subsequently, management dismissed the employee as the suitable employment position determined by the CSST didn’t exist within its establishment.
The union subsequently challenged this dismissal by way of a grievance procedure. It should be mentioned that the collective agreement contained a clause that specified that “the employee who regains his or her capacity to work, but who suffers from a permanent disability that prevents him or her from occupying a previously-held position, “…shall be reassigned, without any job posting, to another position suitable for his or her health, based upon available job positions.”
The employer took the view that the arbitrator was not entitled to rule on the grievance as that would require a review of the findings of the CSST on an issue involving capacity to work and the right to return to work. The arbitrator declined jurisdiction, concurring with the arguments of the employer.
The Court of Appeal ruled that the AIAOD allows parties to a collective agreement to include provisions that are more beneficial than those provided by law.
The grievance arbitrator therefore enjoys exclusive jurisdiction to rule on the issue as to whether an agreement contains such a provision, and where applicable, jurisdiction over its interpretation and application. That said, the arbitrator remains bound by determinations made by the CSST.
The Court of Appeal wrote as follows :
“[116] Nor does this interpretation contradict the A.O.A.I.D: when the CSST determines the issue of suitable employment, it is not forcing a worker to hold this job position for the remainder of his or her professional career. So, it doesn’t prevent the worker from finding a position that is other than what was deemed suitable (whether with the employer or otherwise).
[117] Consequently, nothing prevents the parties,as they have done in the present case, from agreeing to another provision which expands the right of return to work of an employee by forcing the Employer to offer to the employee any employment which he is capable of doing, notwithstanding the fact that it is employment beneath the level of the employment deemed to be suitable by the CSST.”
The Court therefore dismissed the appeal, ruling that the arbitrator had jurisdiction to apply the most advantageous provisions and concluded that the provision at issue was in fact more advantageous than that provided for under the AIAOD.
Our comments :
Under the AIAOD, suitable employment has to satisfy certain conditions, particularly that of corresponding to the interests and professional qualifications of the employee while taking into account the functional disability.
So, an administrative technician should not be offered a position as a caretaker, which doesn’t correspond to his or her professional qualifications. Nor should a beneficiaries attendant be offered a job as a cook, for the same reason.
In the present matter, the collective agreement stipulated that an employee who recovered sufficiently to return to the workplace, but who suffered a permanent functional disability, preventing him from holding his pre-injury position, would have the option of being replaced without the required job posting, to another job position, that his state of health allowed him to hold, taking into account the number of available positions to be filled.
This provision thus offered the employee more options and was consequently more advantageous than the plan offered by the CSST with respect to readaptation and return to the workplace : it allowed for the possibility of being replaced elsewhere than in a position that already takes into account his professional qualifications.
The range of possibilities open to the employee was thus broader than those afforded by the definition of « suitable employment », as the collective agreement provision went above and beyond what was provided under the Act.
We can conclude that an arbitrator may on occasion have jurisdiction — in very specific cases – to hear a grievance when the collective agreement provides for more generous employer obligations than those set forth in the AIAOD.
In the wake of the Caron decision, rendered by the Court of Appeal during early Summer 2015, the CSST and the CLP now have the power to verify whether a company has fulfilled its duty to accommodate employees within the framework of the readaptation process under the AIAOD, in the light of the Charter. The employer is no longer deemed to have fulfilled its duties by merely indicating whether it has or doesn’t have suitable employment within the company.
Under these circumstances, we can speculate that it will be fairly infrequent that a clause under a collective agreement will be more advantageous than the process of reintegration provided for under the AIAOD, that already has to take into account the Charter and the employer’s duty to accommodate.
Generally speaking, we advise employers to be vigilant whenever they are negotiating the provisions of a collective agreement dealing with the return to the workplace of an employee who has suffered an employment injury, in order to avoid assuming additional liabilities over and above the comprehensive plan already offered in the field of readaptation.
Full citation of the decision : Université McGill v. McGill University Non Academic Certified Association (MUNACA), 2015 QCCA 1943
