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Guide Interpretation

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Part I - Act respecting labour standards

CHAPTER V - Recourses

Recourse against certain differences in treatment

Sections
121.1
121.2
121.3
121.4
121.5
121.6
121.7
121.8
122
122.1
122.2
123
123.1
123.2
123.3
123.4
123.5

Article 123.4

Commission des relations du travail

If no settlement is reached following receipt of the complaint by the Commission des normes du travail, the Commission des normes du travail shall, without delay, refer the complaint to the Commission des relations du travail.

Provisions applicable

The provisions of the Labour Code (chapter C-27) applicable to a remedy relating to the exercise by an employee of a right arising out of that Code apply, with the necessary modifications.

Exception

The Commission des relations du travail may not, however, order the reinstatement of a domestic or person whose exclusive duty is to take care of or provide care to a child or to a sick, handicapped or aged person, in the employer’s dwelling.

2002, c. 80, s. 67.

Interpretation

When no settlement is reached, the complaint is referred to the Commission des relations du travail. The provisions of the Labour Code apply.


If it is established, to the satisfaction of the Commission des relations du travail, that the complainant is an employee within the meaning of the Act respecting labour standards, that one of the facts mentioned in section 122 or 122.1 ALS occurred and that there is concomitance between these events, there is "simple presumption" in favour of the employee that the measure was taken against him by reason of the existence of this fact.
The employer then has the burden of reversing that presumption by proving that the measure arises from another just and sufficient cause.


"Simple presumption" is that which concerns presumed facts, namely the illegal sanction. It can be overturned by evidence to the contrary. Once the conditions established, the legislator instituted a presumption of fault or responsibility on the part of the employer regarding the measure imposed. By known facts, this measure, concomitantly with one of the situations mentioned in sections 122 and 122.1 ALS, the legislator makes probable an unknown fact that is often difficult to establish directly, namely a sanction for the inconveniences associated with one of the situations. For example, a pregnant employee is dismissed. There is simple presumption that her dismissal results from her state of pregnancy, whether or not the employer knew of it. It is up to the employer to prove that he took this sanction against the employee for another reason that is good and sufficient.


That explains why the hearing unfolds in two parts before the deciding party. First, the complainant must prove the conditions establishing the presumption he wishes to avail himself of. If this presumption is established to the satisfaction of the Commission des relations du travail, the employer then has the burden of overturning this presumption and will proceed on the proof of the "other good and sufficient cause", which must be a serious cause, in opposition to a pretext, and be the true cause of the dismissal.


When the Commission des relations du travail concludes that an employer engaged in a prohibited practice, it can order the reinstatement of the employee in his job as well as an indemnity equal to the wages and other benefits of which he was deprived by the sanction. Failing an agreement between the parties, the amount of this indemnity is determined by the Commission des relations du travail on application of the employer or the employee (s. 19, Labour Code).


The decision of the Commission des relations du travail is without appeal. At the request of an interested party and within a period of twelve months following this decision, the Commission des relations du travail may authorize the filing of the decision at the office of the clerk of the Superior Court of the district in which one of the parties is domiciled. This decision then becomes enforceable. Under section 146.1 of the Labour Code, an employer who does not comply with the order of reinstatement and, where such is the case, of payment of an indemnity is guilty of an offence and is liable to a fine for each day of failure to comply.


The Commission des relations du travail cannot order the reinstatement of a domestic or a person whose exclusive duty is to care for or take care of a child or a sick, handicapped or aged person in that person’s dwelling. In this case, the Commission can order the payment to the employee of an indemnity corresponding to the wages and other benefits of which he was deprived by the sanction imposed. Since May 1, 2003, this indemnity is no longer limited to three months of wages.

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