In a recent decision handed down on October 26, 2020,[1] arbitrator M^tre Jean-François La Forge dismissed an application for a safeguard order filed by the Syndicat des fonctionnaires municipaux de Québec (the Union) in an attempt to force Quebec City (the City) to give preference to teleworking.

The arbitrator analyzed the orders-in-council recently adopted by the Quebec government to protect the population’s health during the global COVID-19 pandemic, and took this opportunity to specify some of the teleworking rights and obligations of employers.

What happened in this case?

On September 23, 2020, the Union sent the City a formal demand essentially accusing it of requiring several of its employees to be present at the workplace even if their work could be carried out remotely, an alleged breach of Order-in-Council 689-2020 (the Order-in-Council). This Order-in-Council provides, among other things, that “when work may be carried out remotely, teleworking from a private residence or its equivalent [must] be given preference.”

In its response to the formal demand, the City said it was convinced that its management rights included the right to identify which tasks could be carried out remotely based on its operational and organizational needs, provided it complied with the health measures and rules in force.

Based on the Order-in-Council, the Union filed a grievance and application for a safeguard order asking the arbitrator to issue an interim order against the City to keep its employees working remotely until a ruling on the merits of the case could be handed down. The arbitrator’s decision deals only with this interim stage.

The arbitrator’s decision

The arbitrator first reiterated that an application for a safeguard order must meet the following three criteria that are widely recognized in case law:

• existence of an apparent entitlement;
• serious and irreparable harm; and
• balance of convenience.

The arbitrator then analyzed the orders-in-council enacted under the Public Health Act and concluded that they in no way modify the existing collective agreements or limit the management rights of employers. As long as employers take the necessary health measures, they “[translation] meet their obligations and can therefore require their employees to be present at the workplace if they are unable to give preference to teleworking.”[2]

This means that an employer, in this case the City, retains its management rights when it comes to the exercise of “giving preference to” teleworking. The arbitrator noted that this exercise, in which employers enjoy a certain latitude, can hardly be challenged by means of a safeguard order as in this case, due to the urgent nature of such an application.

What’s more, the arbitrator stated that the City “[translation] seems to comply with the orders-in-council” of the government at this stage, having authorized some 1,500 of its employees to work remotely.[3] Consequently, he concluded that there was no colour of right.

The arbitrator also dismissed the Union’s argument of serious harm. According to him, the fear of COVID‑19 contamination does not, in and of itself, warrant issuing a safeguard order, especially since the City had taken the appropriate health measures.

Finally, according to the arbitrator, the balance of convenience leans in favour of the City, which must continue to provide services to the population.

The arbitrator therefore dismissed the Union’s application for a safeguard order and summoned the parties to a hearing on the merits of the grievance.

Take-away

This decision specifies some of the teleworking rights and obligations of employers during the global COVID-19 pandemic. It recognizes that employers who take the necessary health measures can, in all likelihood, require their employees to be present at the workplace if they are unable to give preference to teleworking. If this is the case, such a requirement will be subject to the employers’ management rights and may, it bears noting, be challenged by means of a grievance.

In this case, however, the arbitrator only ruled on the interim stage. The hearing on the grievance’s merits has yet to take place and should prove interesting. Naturally, we will keep you informed of any developments in this case.

[1] Syndicat des fonctionnaires municipaux de Québec and Ville de Québec, no: 20-136-09, October 26, 2020, M^tre Jean-François La Forge, arbitrator.

[2] Id., para. 48.

[3] Id., para. 55.

Author: Jonathan Deschamps, Associate, Employment and Labour Law