On May 9, 2018, in CIUSSS du Centre-Ouest-De-l’Île-De-Montréal (CHSLD juif de Montréal) c Alliance du personnel professionnel et technique de la santé et des services sociaux (APTS),1 arbitrator Louise Doyon allowed the grievance of the Alliance du personnel professionnel et technique de la santé et des services sociaux (Union) claiming moral damages from the CIUSSS du Centre-Ouest-De-l’Île-De-Montréal (Employer) for breach of the local collective agreement in respect of notices of assignment.
Since June 2007, the local collective agreement binding the parties specifies that, when the Employer assigns an employee on the availability list to fill a position that is temporarily without an incumbent, it is required to send the Union a notice of assignment indicating the job title, the identity of the incumbent (if any), the probable length of the assignment and the salary.
Such notices allow the Union to answer employee questions properly and in a timely manner, map replacements, quickly intervene if problems arise, and investigate and resolve issues in a reasonable amount of time.
The Employer fulfilled this obligation until the beginning of 2017. After that, despite repeated requests from the Union representatives, it omitted to send notices of assignment, and the few notices it did send did not comply with the information requirements in the local collective agreement, rendering them, for all intents and purposes, useless.
In light of this, the Union filed a grievance on March 15, 2017, to contest the Employer’s refusal or failure to send notices of assignment in accordance with the local collective agreement. In that grievance, the Union asked the arbitrator to declare the decision illegal and order the Employer to send the Union the notices of assignment retroactively and pay $5,000 in moral damages.
The arbitration award
Based on prior case law, the arbitrator immediately confirmed she had jurisdiction to order the payment of moral damages. She then explained that three elements needed to be present in order to award such damages: contractual fault, a prejudice and a direct and immediate connection between the fault and the prejudice.
The first element, fault, was not contested as the Employer itself acknowledged at the hearing that it had violated the collective agreement by not sending the notices of assignment to the Union.
The Union demonstrated the second element, prejudice, by a preponderance of the evidence. Its prejudice consisted of the many additional dealings with the Employer and the employees, the significant amount of time lost gathering information, the growing number of employee questions to which the Union could not provide a suitable response, the Union’s involvement in disputes that may not have occurred had the notices of assignment been sent in due course, and the Union’s loss of credibility among its members.
As for the third element, a causal connection, the arbitrator found the Union had clearly shown that its prejudice resulted directly from the Employer’s failure to fulfill its obligation to send the notices of assignment in accordance with the local collective agreement.
Thus, according to the arbitrator, this type of prejudice meets the definition of moral damages and is sufficiently serious to give rise to compensation. Although the Employer had not acted in bad faith as such, the arbitrator nonetheless found it had dealt with the matter in a very nonchalant and offhand manner. In light of the fact that, despite the Union’s repeated requests, the Employer had, until just a few days before the hearing, persisted in not complying with the collective agreement, it is the arbitrator’s opinion that merely finding the Employer in breach of the collective agreement is not enough under the circumstances. The arbitrator therefore allows the grievance and orders the Employer to pay the Union moral damages in the amount of $5,000.
This arbitration award signals to employers that if they violate a collective agreement, they may end paying damages even if there is no evidence they acted in bad faith.
The author wishes to thank law student Hugo Séguin for his help in preparing this legal update.
1 2018 CanLII 43263 (QC SAT).