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Act respecting labour standards Chapter V - Recourses (Section 98 to 135)

Chapter V - Recourses (Section 98 to 135)

Division III - Recourse against dismissals not made for good and sufficient cause (Section 124 to 135)

Section 128

Powers of the commission des relations du travail

Where the Commission des relations du travail considers that the employee has not been dismissed for good and sufficient cause, she may:

  1. order the employer to reinstate the employee;
  2. order the employer to pay to the employee an indemnity up to a maximum equivalent to the wage he would normally have earned had he not been dismissed;
  3. render any other decision he believes fair and reasonable, taking into account all the circumstances of the matter.

Domestic

However, in the case of a domestic or a person whose exclusive duty is to take care of or provide care to a child or to a sick, handicapped or aged person, the Commission des relations du travail may only order the payment to the employee of an indemnity corresponding to the wage and other benefits of which he was deprived due to dismissal.

Interpretation

This provision establishes the powers of the Commission des relations du travail if it deems that an employee was dismissed without good and sufficient cause under section 124 ALS. The Commission has broad discretion as to the orders that it may make when it accepts a complaint. In this sense, the Commission has the power to order any measure that it deems appropriate and may thus substitute its judgment for that of the employer as to the sanction that should be imposed. For example, change a dismissal into a suspension.

In addition, the Commission has broad powers with respect to ordering reinstatement and the indemnities that should be granted.

The Court of Appeal summarizes the powers granted under section 128 ALS as follows:
"Hence, the remedy authorized under the Act has two objectives: the first, stipulated in subparagraph 2, seeks to reimburse the wages lost at the date of the arbitral award and the second, described in subparagraphs 1 and 3, is forward-looking and consists of the reinstatement of the employee in his position or, where this is not possible, in the granting of any other fair and reasonable measures dictated by the circumstances."
(Ref.: Immeubles Bona ltée v. Labelle, D.T.E. 95T-427 (C.A.)).

When the complaint is accepted, reinstatement is the remedy that is first and foremost in order. However, it is possible that under certain special circumstances, reinstatement is not the most appropriate measure. For example, this could be the case if the relationship of trust between the employer and the employee has been severed.

Moreover, under subparagraph 2 of section 128 ALS, the Commission des relations du travail has jurisdiction to order the employer to pay an indemnity equivalent to the wages lost since the dismissal. It should be mentioned that this indemnity to compensate for lost wages is not dependent on an order to reinstate the employee in his job or on any other form of indemnity or compensation granted under the third subparagraph of section 128 ALS. Section 128 gives the Commission des relations du travail the possibility to accumulate different types of potential remedies.

Regarding the power to "render any other decision that the Commission believes fair and reasonable, taking into account all the circumstances of the matter", this is another way of saying that the Commission des relations du travail has broad powers to compensate for the consequences of an unfair dismissal. By reason of this fact, it is empowered to order the granting of various types of damages, without specific limitations. For example, moral damages, exemplary damages, job search costs, indemnity covering the loss of coverage of an insurance plan, loss of the use of an automobile provided by the employer).

In addition, as is stipulated in section 123.15 ALS regarding the possible remedies in the case of a complaint against psychological harassment, the Commission des relations du travail may, during a recourse under section 124 ALS, impose the orders that it deems appropriate according to the facts specific to each case. For example, ordering the employer to give the employee a letter of reference, giving the employee adequate training to prepare him for technological changes in the undertaking, etc. See the interpretation under section 127 ALS regarding the other powers of the Commission des relations du travail.

As for domestics or persons whose exclusive duty is to care for or provide care to the persons mentioned in the last subparagraph of section 128 ALS, the Commission des relations du travail can only grant these employees the payment of the wages and other benefits that they were deprived of by the dismissal. The powers of the Commission des relations du travail are more limited in this area.

The decision of the Commission des relations du travail is without appeal and is binding on the parties (see the interpretation of section 130 ALS).

1979, c. 45, s. 128; 1981, c. 23, s. 58; 1983, c. 22, s. 104; 1990, c. 73, s. 62; 2001, c. 26, s. 147; O.C. 1314-2002; 2002, c. 80, s. 71.