New hiring criteria for firefighters in Quebec City

Last week, an article was published in Le Soleil regarding the new criteria used in the hiring of firefighters in the City of Quebec. The City is looking to hire 77 new firefighters, all of which must have received a “Diplôme d’études collégiales” (DEC), or a diploma of college studies, in fire safety. Therefore, all firefighters who have not received this diploma will be rejected from the hiring process. Some candidates have denounced this situation as being discriminatory.  Since the program only began in 2009, those who were firefighters prior to 2009, but never followed the course, are excluded from the process and this, regardless of their experience, knowledge or skills.

Is this hiring criteria discriminatory?  Section 10 of the Quebec Charter of Human Rights and Freedoms protects all Quebec citizens against discrimination. That being said, Section 20 of the Charter allows discrimination in employment situations where said discriminatory requirement is a characteristic required for the job. In the situation in which Quebec City’s new criteria in the hiring of firefighters is challenged on the basis of discrimination, it would be interesting to see how it is assessed by our courts.

Although covering a different set of facts, the Quebec Court of Appeal reminded us recently in Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec (SIIIACQ) v. Centre hospitalier régional de Trois-Rivières, 2012 QCCA 1867 (CanLii) (application for leave to appeal to the Supreme Court, 14-12-2012) of the applicable principles in determining whether or not a hiring policy is discriminatory. The employee must show discrimination, that is an injury or prejudice and a connection with a prohibited ground of discrimination set out in section 10 of the Quebec Charter of Human Rights and Freedoms. The employer will then have to prove that the discriminatory criteria was justified by the aptitudes or qualifications required by the employment. These aptitudes or qualifications generally receive a restrictive interpretation. More specifically, as discussed in the Supreme Court’s decision Employee Relations Commission v. BCGSEU, [1993] 3 R.C.S. 3, for a hiring policy to be deemed non discriminatory, an employer must demonstrate that the requirement was adopted for a purpose rationally connected to the performance of the employment. Furthermore, the employer must establish that the norm is reasonably necessary to realize that legitimate work-related purpose.

It will be interesting to see if, and how, the candidates in this case go forward with an argument of discrimination.

In collaboration with Julie Bélisle, articling student at Norton Rose Canada LLP

Cancellation of service agreement triggers section 197!

In the case of Grinpal Energy Management Services (Pty) Ltd v City Power Johannesburg (Pty) Ltd 2013 1 BLLR 34 (LC), City Power informed Grinpal that it was cancelling the service agreement between the parties because Grinpal did not have a valid tax clearance certificate. Grinpal claimed that the cancellation would result in a transfer of its business to City Power who would become its employees’ employer by virtue of section 197 of the Labour Relations Act of 1995 (LRA).

City Power contended that the service contract provided that on termination, the contractor would simply “exit the scene” with its equipment and employees, and a new contractor would be appointed to continue the service with its own equipment and workforce.

The court referred to the judgment of the Constitutional Court in Aviation Union of SA and another v SA Airways (Pty) Ltd 2011 32 ILJ 2861 (CC) which provided that “Section 197 is triggered when on the facts there is a transfer by one employer to another, in circumstances where the transferred entity is the whole or part of a business, and where the business (or part of it) is transferred as a going concern. If the transfer meets these criteria (a matter for objective determination), the transferee is substituted automatically and by operation of law for the transferor as the employer of those of the transferor’s employees engaged in the business on the date of the transfer.”

The court further relied on the case of Harso Metals SA (Pty) Ltd and another v Arcelormittal SA and others 2012 4 BLLR 385 (LC) which found that “the whole infrastructure for conducting the business of providing services would ordinarily remain the property of the outsourcee”.

The court accordingly found that the infrastructure for conducting the business in question had not remained in Grinpal’s hands and had in fact transferred, albeit temporarily, into the hands of City Power.

The court found that the “holding operation” that City Power said it was a part of cannot be immune to the operation of section 197.

The court further found that organs of state employers are not exempt from the operation of section 197 of the LRA. The court accordingly declared that Grinpal’s employees had transferred to City Power in terms of section 197.

Exclusion of members of the works council in Germany

In a recently decided case, an employee, who was also chairman of the works council, accessed his employer’s human resources data system, containing the personal data of the employees’ personnel files, to receive information for the works council’s work without the employer’s permission.

Consequently, the employer dismissed the employee without notice and claimed to exclude the employee from the works council at the responsible labour court. The regional labour court decided that the exclusion from the works council was valid whereas the dismissal without notice was invalid.

An exclusion from the works council is possible under German law in case of a serious breach of the member of a works council’s duties. One of the duties is protecting the employees’ personal rights. However, instead of protecting the employees’ rights, the chairman of the works council broke the German data protection rules and the employees’ personal rights to the employees’ detriment. Therefore the exclusion from the works council was deemed valid.

However, the employee could not be dismissed due to this breach of obligation. The breach did not touch the chairman’s duties as an employee but only as a member of the works council. Therefore the dismissal was deemed invalid.

An employer can approach the court to set aside its own promotions where it is an invalid administrative act

In August 2012, in the matter of N L Khumalo and one other v The MEC for Education: KwaZulu Natal, the Labour Appeal Court had to consider a decision handed down by the Labour Court where the Labour Court granted relief to the employer (the eThekwini Service Centre of the Department of Education, KwaZulu Natal) to set aside its own decision to promote an employee to the position of Chief Personnel Officer and to grant a second employee protected promotion.

Mr Khumalo and Mr Richie were both employees of the Department of Education. Both applied for the position of Chief Personnel Officer.  Mr Khumalo was successful.  Mr Ritchie was not shortlisted.

Mr Ritchie commenced litigation against the department. The parties agreed to settle the matter and Mr Ritchie was offered a protected promotion whilst Mr Khumalo would still be allowed to retain the post to which he was promoted.

Subsequently, a union acting on behalf of the 11 other applicants to the position of Chief Personnel Officer, brought it to the attention of the MEC of the department that the promotions of both Messrs Khumalo and Ritchie were irregular. Mr Khumalo did not meet the requirements of the position of Chief Personnel Officer whilst Mr Ritchie was not even shortlisted for the position.

The MEC then approached the Labour Court to set aside the promotions of Messrs Khumalo and Ritchie on the grounds that they were unlawful in that they did not meet the requirements of just administrative action as set out in Section 33 of the constitution.

On appeal the Labour Appeal Court found that the two employees did not meet the requirements of the position. It found that the department’s decision to grant Mr Ritchie protected promotion in the circumstances undermined the spirit of transparency and accountability, two cornerstones of the rule of law. 

It also found that the MEC was not only entitled but also duty bound to approach the court to set aside her own irregular administrative actions.  The Labour Appeal Court furthermore held that where an administrative act is unlawful it did not necessarily mean that it will to be set aside.  There is a tension between the principle of legality which requires an invalid administrative action to be declared unlawful on the one hand and practical considerations which require finality and certainty on the other hand.  For example, where an invalid administrative has, over a period of time, remained unchallenged and the parties have arranged their affairs in accordance with it, then setting it aside subsequently might cause injustice.

In this matter, the court considered the fact that Messrs Khumalo and Ritchie have planned their careers and arranged their affairs on the assumption that they were properly promoted.  To set aside their appointments would have huge implications for their careers paths and may also be seen as a demotion.  However, there are also aggrieved candidates to the position of Chief Personnel Officer and the potential prejudice to them cannot be listed.  The prejudice to them, as long as the promotions continue to exist, would likely be irreversible.

The court upheld the decision to set aside the promotions.

NHL Lockout Over - What about the legal labour battle?

 The lockout is over and the players are back at practice. Time to skate on? Yes, but I think we ought to look at the "game tape" to review the effectiveness of some of the legal wrangling that took place in Canada. After all, we’ll likely be back in the same place in 10 years. As discussed in a previous post, the NHLPA filed proceedings before the labour boards of Quebec and Alberta against the NHL, seeking to have the lockout declared illegal. What happened to those proceedings? Not much…

 The interim relief sought in both cases was rejected and the boards’ decided a hearing on the merits was required but delayed their start, likely in the hope that the parties would resolve their issues without resort to tribunals – which they did. Those cases will now likely die on the vine.

 While those cases made headlines, in my view, they never had any chance of success and strike me as a waste of player, league and taxpayer money (the tribunals are funded out of the public purse). There is no question that nature of the work carried in the NHL would be governed by provincial law and provincial labour tribunals (which is why the NHLPA filed provincially). Those tribunals have jurisdiction that, constitutionally, cannot extend into other provinces.

 Conversely, the NHLPA is ostensibly a bargaining unit that stretches the continent, covering multiple provincial jurisdictions and another country! Provincial labour tribunals do not have the authority or ability to order the NHL to play. They could never order the implementation of a schedule and force the Boston Bruins to fly to Toronto to play the Maple Leafs. So while these cases were interesting, there was never could never be any effective response from our courts. Forcing owners to unlock the gym and practice rink (one possible remedy) wouldn’t end the lockout. Is there some kind of effective remedy that a provincial tribunal could order? Did the NHLPA waste taxpayer money by filing a frivolous claim?