April 7, 2021

Pandemic: Arbitrator determines teleworking rights and obligations of Quebec employers

In a recent decision, a grievance arbitrator specified the teleworking rights and obligations of Quebec employers. This decision is further to the decision handed down in the fall in which the arbitrator dismissed the application for a safeguard order filed by the Syndicat des fonctionnaires municipaux de Québec (Union) in an attempt to force Quebec City (City) to give preference to teleworking.

Interim decision

As explained in our blog post on the interim decision, the arbitrator essentially dismissed the application for a safeguard order filed by the Union for two reasons:

Order-in-Council 689-2020 (Order-in-Council), which provides, among other things, that “when work may be carried out remotely, teleworking from a private residence or its equivalent [must] be given preference” does not modify the existing collective agreements or limit the management rights of employers. As long as the City takes the necessary health measures and is unable to give preference to teleworking, it can require that its employees be present at the workplace.

The Union’s safeguard application is tantamount to asking the arbitrator to determine the merits of the case without an adversarial proceeding, which is not permitted at the order stage.

In this decision, the arbitrator addresses the merits of the case.

Decision on the merits

At the start of the pandemic, the City assigned the 311 service agents to telework. The agents’ main duties are to respond to citizens’ requests, receive complaints and transfer calls to the appropriate departments.

During this time, the City set up a safe workspace and transferred some of the agents to another building to respect distancing measures. Once these measures were implemented and the first lockdown period had ended, the City required the 311 service agents to be present at the workplace.

The Union relied on the Order-in-Council, the relevant extract of which is reproduced above, to ask the arbitrator to force the City to allow agents to carry out their work remotely. According to the Union, the obligation to give preference to a remote working arrangement entails the obligation to do so, which the City failed to do.

The arbitrator started by noting that the collective agreement does not say anything about teleworking. The City’s managements rights in this respect thus remain intact and it is free, except as provided in the Order-in-Council, to decide whether or not teleworking applies to 311 service agents.

The arbitrator then noted that the Order-in-Council does not change the existing collective agreements or limit the management rights of employers. It simply orders the employer to “give preference to” teleworking. According to the arbitrator, the term “give preference to” means “[translation] paying particular attention to” (par. 72). This means that the City must “[translation] give preference to teleworking if, in its opinion, it can do so while ensuring the customary level of service” (par. 73).

It appears from the evidence adduced before the arbitrator that the quality of the service rendered by the agents teleworking was affected by connection, low network coverage and communication issues. The arbitrator also noted that, despite the City’s efforts, the calls of agents teleworking could not be recorded, which is a disadvantage for both the agents and the employer. Finally, the arbitrator noted that the City had taken the necessary health measures to ensure that 311 service agents could safely perform their work.

The arbitrator therefore dismissed the grievance.

Take-away

This decision confirms that employers who take the necessary health measures, while respecting the laws, orders-in-council and agreements in force can, in all likelihood, under its management rights, require their employees to be present at the workplace if they are unable to give preference to teleworking during the global COVID-19 pandemic.

Author:

Jonathan Deschamps, Lawyer

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