Subject to sections 123 and 123.1, an employee who believes that one of his rights under this Act or a regulation has been violated may file a complaint in writing with the Commission. Such a complaint may also be filed on behalf of an employee who consents thereto in writing by a non-profit organization dedicated to the defence of employees' rights.
If an employee is subject to a collective agreement or a decree, the complainant must then prove to the Commission that he has exhausted his recourses arising out of that agreement or that decree, unless the complaint concerns a condition of employment prohibited by section 87.1; in the latter case, the complainant must prove to the Commission that he has not exercised such recourses or that, having exercised them, he discontinued proceedings before a final decision was rendered.
1979, c. 45, s. 102; 1982, c. 12, s. 4; 1990, c. 73, s. 45; 1999, c. 85, s. 3.
An employee may file, in writing, a complaint with the Commission. A non-profit organization dedicated to the defence of employees’ rights (such as a union) may also file, in writing, a complaint with the Commission des normes du travail on behalf of the employee who consents thereto in writing.
If an employee is subject to a collective agreement or a decree, he must then show that he has exhausted the recourses arising out of that agreement or decree, namely that a final decision concerning this recourse was rendered. This final decision or decision not subject to appeal is one that is described as such in the Act.
The Court of Appeal in the case of the Campeau Corporation issued three conditions for the requirement of the prior exhaustion of recourses:
If one of these three conditions is absent, the employee does not have to exhaust these recourses, as either the recourse does not exist or he cannot assert rights that are not stipulated in the collective agreement.
The Court of Appeal stipulated in the case of Côté v. Savana that the civil courts declare that they are not competent to hear disputes which, in their substance, are work-related and for which the arbitration procedure was or could have been used.
Moreover, the provision of the collective agreement must deal directly with a standard referred to in the Act respecting labour standards and, by way of a grievance, give rise to the appropriate recourse. For example, the notice of termination of employment stipulated in the Act respecting labour standards could not be exchanged or compensated by another benefit conferred by a collective agreement, such as seniority, right to recall or severance pay.
Hence, the employee is under the obligation to exhaust his recourses (grievance) when the collective agreement contains provisions that are equivalent to or more advantageous than those of the Act.
Moreover, if a collective agreement contains a clause, the effect of which is to replace a provision of the agreement that runs counter to a law by the text of the Act, the appropriate recourse would be a grievance. The same is true when the agreement is amended by a referral to the Act respecting labour standards (Commission des normes du travail v. Les Chantiers Davie ltée).
When section 87.1 ALS (differences in treatment) is alleged in support of a complaint, the employee does not have to exhaust the recourses ensuing from his collective agreement or his decree. Instead, he must show the Commission that he has not used these recourses or if he did use them, that he withdrew before a final decision was rendered.
The provisions of section 102 can only be given application within the context of a claim of a pecuniary nature. This provision would have no impact on a complaint filed according to the provisions related to prohibited practices (s. 123 and 123.1 ALS). An employee who wishes to complain about such a practice can and must complain to the Commission, notwithstanding any other remedial procedure.