4 Game-Changing Employment Law Rulings in 2023

Companies’ implementation of telework in response to pandemic-related health measures has prompted administrative and judicial courts to review certain legal concepts.

Recent rulings reflect this adjustment to new professional realities. Below is an overview of key developments in this regard in 2023.

Groupe CRH Canada inc. v. Tribunal administratif du travail

On November 25, 2021, Administrative Labour Tribunal decided that the employer had breached anti-scab rules by permitting a teleworking employee to continue working during a lockout. In its decision, the administrative labour tribunal held that the employer’s “establishment” included the teleworking employee’s private premises.

The Superior Court overturned this decision, which it deemed unreasonable. In its estimation, the broad interpretation of the concept of “establishment” was irrational and inconsistent with various Court of Appeal rulings.

Accordingly, the Superior Court rejected the “deployed establishment” concept. It adopted the Court of Appeal’s interpretation that an “establishment” is limited to the employer’s physical premises, whose doors may be locked, and does not extend to the teleworking employee’s home.

It is worth noting that this decision is currently the subject of a leave to appeal.

In Coop Novago v. Syndicat des travailleuses et travailleurs de la Coop Lanaudière - CSN, the Superior Court came to the contrary conclusion, holding that the duties of a striking bargaining unit employee could not be performed remotely, in this case by non-unionized employees.

Considering that this issue is the subject of a contradictory jurisprudence, we will follow with interest the teachings of the Court of Appeal.

Marchetta v. Tribunal administratif du travail

This case involved an employee who worked remotely for – and was dismissed by – a U.S. company that does not operate a physical facility in Québec.

In response, the employee contested her dismissal with the CNESST under section 124 of the Act respecting labour standards. The employer argued that the Act does not apply since it has no establishment in Québec. Considering that the employee rendered services from her home in Québec, the Administrative Labour Tribunal initially ruled that her residence constituted an establishment of the company and that, as a result, the Act respecting labour standards did apply.

Upon review, the Tribunal overturned the initial decision, pointing out that section 2 of the Act respecting labour standards did not provide for extraterritorial application. The Superior Court then confirmed the Administrative Labour Tribunal’s revised decision, noting that for the Act respecting labour standards to apply, it was essential for the employer to have some connection to Québec. The employee’s home could not serve as such a connection in the absence of evidence showing that the employer intended to use these premises to conduct business, for instance by using the employee’s home address on official documents or have materials delivered to the employee’s home.

Since it has granted leave to appeal, the Court of Appeal will have to rule on this issue in the months ahead. It will be very interesting to follow this case, as telework has led many people to work for employers located abroad, thereby raising complex legal issues.

Trivium Avocats inc. v. Rochon

This case provided some clarification regarding employers’ general obligation to prevent conjugal, family or sexual violence, as set forth in the Act respecting occupational health and safety (the “AOHS”). It is worth noting that the AOHS may apply to teleworking employees and their employers.

The Superior Court drew on these new obligations to grant an application for a permanent injunction in a case of domestic violence, which is a matter that generally falls within the purview of privacy. The employer had applied for a protection order for its employee who was a victim of domestic psychological violence. The employee’s son would telephone her at work several times a day to threaten and intimidate her and press her for money. The Court ruled that the employer had a duty to intervene to protect the employee in the workplace, in accordance with section 51 of the AOHS. Furthermore, it recognized that this obligation gave the employer the right to seek a protection order.

In 2023, telework generated a great deal of debate and discussion in the courts regarding employers’ obligations. Such issues are bound to recur in the course of 2024.

To find out more about the latest developments in employment law, join us on April 30, 2024, at our Strategic Forum on Labour and Employment Law: Register now.