Voici une étude préparée au sujet d'un cas particulier qui apporte, dans une large mesure, une réponse d'ordre général à une question de grande importance théorique et pratique : la mise-à-pied met-elle fin à l'emploi ? L'auteur, après avoir reconstitué les faits et exposé la position de l'employeur et du syndicat concernés, donne son opinion à la lumière du droit commun, du droit statutaire et de la convention collective particulière.
Last winter 1955-56, a company considerably reduced its production and personnel because of a scarcity of hydroelectric power. At rehiring time, the employer pretended it was under no obligation to deduct the union dues of the organized workers returning from the lay-off, unless each one signed a new formula of authorization.
The company attitude is based mostly on its interpretation of a clause of the labour agreement which it has signed. The text mentions that such an authorization for check-off shall cease to have any force and effect "from and after the date upon which the employee is separated from the company for any cause whatsoever".
The union, on the other hand, alleges that such a decision by the company constitutes a violation of the labour agreement, those formulas of authorization which have been signed previously being still valid. To prove this, the union refers to the clauses of the Appendix of the labour contract which contains the "Regulations governing the status of employees and the computation of their continuous service". One clause reads : : "After an employee's authorized absence has last one (1) year and extension beyond the year has not been granted in writing, his employment shall be terminated as of the end of such year".
The company asserts that for check-off purposes, "termination of employment" means that the individual involved is no more on the job and that his name does not appear any more on the payroll; it concedes, however, that a laidoff employee is entitled to paid holidays and to unemployment insurance benefits.
The problem is to determine whether, in the case of employees laid off and taken back to their work thereafter, there is employment termination.
The current use of the expression "to be at the employ of" someone means to work for him, to be at his service and to have an individual labour contract with him; this meaning seems to be more enlightening to us than the other classical definitions we can find in any good dictionaries. But does the interruption of work necessarily involve a break of the labour contract? In certain cases, some authors pretend that there is no real break, but simply a suspension of the execution of the contract; this distinction might lead to a solution.
There is only one possible cause for the break of the labour contract and it seems to be one of superior force: an act of God. But to be of superior force, the event would have to be unexpected, irresistible... Now; in the case of this company, it is doubtful that the argument applies; indeed the scarcity of water and of hydro-electric power had been foreseen some months previously. Moreover, the reduction of personnel did not bring the breaking of all relations between the employer and the laid-off employees.
As we seem to find a real and complete solution to the problem neither in the common law, nor in the labour law proper, we shall consider the interpretation of the collective labour agreement. But does this contract anywhere give a definition of the termination of employment? We can find it at the eppendix entitled "Regulations governing the status of employees and the computation of their continuous service", at article 13: "After an employee's authorized absence has lasted one (1) year and extension beyond the year has not been granted in writing, his employment shall be terminated as of the end of such year".
But if we interpret all by itself this other text of the contract, (69) "the Company recognizes that a grievance involving one ( 1 ) or more former employees who have been laid-off or discharged from the works..." we would think that a lay-off or dismissal terminates employment, because we are then dealing with "former employees". But as we have to study the agreement as a whole, we have to take into account the other clause given above and which is more complete and more accurate.
The termination of employment must be considered as the cessation of all employer-employee relations stipulated by contract. Now, the employees which have been laid off here and which came back to work within the twelve subsequent months maintain their status as members of the personnel; they are still related to the enterprise by their seniority rights, the presence of their name on the recall list, and finally the maintenance of their insurance and pension funds.
Besides, the employment office of the company promised all workers who had one year or more of service that they would go back to their former job as soon as the company would become active again. Again, the argument used by the company concerning its past normal policies regarding the deduction of union dues which used to be revocable at any time, is not relevant since the formula of authorization for deductions is irrevocable for the duration of the agreement.
In conclusion, the author is of the opinion that the company should have deducted unions dues from the salary of the re-employed workers who had already signed such formula of authorization before their lay-off.
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CHOLETTE, GASTON, B.A., maître en sciences sociales, économiques et politiques de la Faculté des Sciences sociales, Université Laval; conciliateur au Ministère provincial du travail, Québec.