mediation at the commission des normes, de lʼéquité, de la ... 2016.pdf · even if you choose...

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MEDIATION At the Commission des normes, de lʼéquité, de la santé et de la sécurité du travail

(In this document, the masculine form designates both women and men. No discrimination is intended)

If you have filed a complaint at the Commission des normes, de lʼéquité, de la santé et de la sécurité du travail (CNESST) for prohibited practices, dismissal not made for good and sufficient cause or for psychological harassment, the Commission will contact you and offer you its free mediation service.

Mediation is a conflict resolution method by which a third party (the mediator) intercedes with both parties (you and your employer) to help them reach a mutually satisfying agreement (also called out-of-court settlement). In this document, the term “employer partyʼʼ will be used to refer to the employer or the person who represents him (director, manager, foreman, human resources manager, lawyer).

A mediation session usually lasts three hours on average and takes place two or three months after you filed your complaint. In the case of a complaint for psychological harassment, mediation may last up to five hours, sometimes more.

1. Methods of mediation

Firstly, mediation is a voluntary process. It can only take place if both parties (i.e. you and the employer) agree to take part in it.

Secondly, mediation is free and without obligation. You can put an end to it at any time, for example, if the situation grows more acrimonious or if you judge the employer partyʼs offers are not sincere or dependable. Moreover, none of the parties can be required to accept an agreement proposed during mediation or be penalized in any way if no agreement is made.

Thirdly, mediation is confidential. What is said or written during the process cannot be used in a hearing, unless both parties agree.

If no agreement is concluded during or after mediation, or if mediation does not take place, your file will simply go to the next stage. In the case of a complaint for psychological harassment at work, your file will be passed on to an investigator from the CNESST. In the case of a complaint for prohibited practices or dismissal not made for good and sufficient cause, your file will be transferred to the Tribunal administratif du travail (TAT) for a hearing date to be set (for more information on the subject, consult our userʼs guides focussing on these complaints). The TAT is a specialized tribunal which hears, among other things, complaints filed at the CNESST, except financial ones.


2. Benefits of mediation

You may find unpleasant to be in presence of your employer (or ex-employer), or its representative. However, it is usually profitable to participate to the mediation process that the CNESST provides. As a matter of fact,

Mediation can help you to obtain a settlement. Conclusions of the TATʼs decision can never be predicted. The employer may really want to agree with you or “buy peaceʼʼ. Even though modalities of the agreement generally allow less than what could be obtained via the hearing of your case by the TAT (if you win), the agreement negotiated with your employer may as well answer your needs.

Mediation can lead to a quick settlement. Then you could avoid waiting periods and other worries that come with all legal procedures. Between 2007 and 2008, the waiting time before the TAT renders a decision was two years on average.

Mediation can allow you to get more than with legal procedures. You could come to an agreement that includes a kind of compensation that is not provided by the law. For instance, you could obtain a severance pay instead of reinstatement as a settlement of a complaint for prohibited practices. The TAT cannot grant that type of compensation in decisions pronounced in court.

Mediation can allow you to better prepare for the hearing of your case. Discussions taking place during the mediation could allow you to get acquainted with the strategy your employer will be using if your case is heard by the TAT.

3. The role of the person in charge of mediation

The purpose of the person in charge of mediation (the mediator) is to help you, and your employer, to come to an arrangement that complies with the Act respecting labour standards (ALS). The mediator is not there to make investigations, defend you against the employer or pass judgements on your complaint. Therefore, it is unnecessary to convince him that you really have been the victim of psychological harassment at work, unfair dismissal or prohibited practices. The mediator cannot and shall not take a stand, express an opinion on the status of your case or give you legal advice. He also cannot pressurize you into accepting an agreement.

On the contrary, according to rules of ethics he must conform to, the mediator has to remain neutral and impartial while making sure that mediation unfolds equitably. The person in charge of mediation must maintain a balance in the negotiations and prevent injustice, intimidation or manipulation. The mediator must also suspend or put an end the mediation if he has reasons to believe that it could cause harm to one of the parties, or that one of the parties does not show a sufficient interest in the process. Moreover, all written or verbal information collected by the mediator in the exercise of his duties must remain confidential and will not be disclosed in any way. Nevertheless, the mediator may be required to testify before the TAT about the existence or absence of an


agreement.

For more information on rules of ethics, ask for the CNESST pamphlet called “MEDIATION: RULES OF ETHICʼʼ or consult it on the CNESST website: www.cnesst.gouv.qc.ca. In principle, the CNESST should send you a copy of it before the mediation.

If the person in charge of your mediation does not respect the rules of ethics, tries to discourage you regarding your chance of success with the TAT or puts pressure on you to accept the employerʼs offer, say without hesitating that you are in contact with Au bas de lʼéchelle (ABE) and tell us about your situation. You can also file a complaint to the CNESST quality service by calling the 1 888 708-9188.

4. The course of the mediation

If you and your employer agree to take part in the mediation process, you will be invited to a meeting at a CNESST office. The persons who will attend the meeting are:

• the CNESST mediator;

• the employer party, that is, your employer and/or its representative(s), possibly with a lawyer and;

• yourself, your lawyer or the person that accompanies you, if need be.

The mediation usually starts with the meeting of both parties. Then, the person in charge of mediation will explain to you his role, what is the purpose of mediation, and how it unfolds. He will make a list of the complaints you have filed at the CNESST. Next, the mediator will ask you to give your version of the facts, then it will be the employer partyʼs turn to speak. You will probably be allowed to react afterwards. Subsequently, he will ask the employer party to leave the room before asking you what are your needs and requests. After that, the mediator will tell the employer party about your requests in your presence. The employer party will be allowed to react. The person in charge of mediation will then try to find an area of agreement by asking both parties to make concessions. He may request to speak with one of the parties privately in order to break the deadlock in the negotiations. You can also ask for it, if the need arises.

It often happens that the agreement is finalized in the following days through the mediator. If an agreement is reached, he will help drawing up its terms and will ask both parties to sign it.

IMPORTANT: Make sure the mediator fully understands your requests before he passes them on to the employer.

This is how mediation goes, but there could be variations through the process. For example, the employer can be brought to speak first. Moreover, if you cannot bear the


idea of being in presence of the employer or its representative, you can ask in advance for a separate mediation. That way, you will be able to expose your version of the facts and present your requests freely. You can also demand a separate mediation if the mood becomes too hostile during the process. Make sure this option really is the best one for you, because in separate mediation, you will not be able to know the employerʼs version of the facts and to express to him the psychological harassment you have been through. Nevertheless, separate mediation is better than no mediation at all.

5. Accompaniment in mediation

Even if you choose not to hire a lawyer to represent you at the mediation, the law allows you to be accompanied by someone you trust. However, this personʼs room for manoeuvre is not clearly defined. In some cases, that person can speak in your name (e.g. union representative), while in other cases he can only act as an observer. Whatever the situation may be, it is always preferable to be accompanied. Furthermore, that person can bring you an invaluable moral support and write down what the employer party says or offers.

Your employer can also request to be accompanied, during the sessions, by your immediate superior, a person from the human resources department or even a lawyer. These persons will be included in the employer party, however, and are usually allowed to speak, unless their role has been previously defined as an observer. To avoid surprises or misunderstandings:

• check with your mediator if your employer plans to be accompanied, by whom, and what his role will be;

• always notify in advance that somebody will accompany you.

Mediation being a voluntary process, none of the parties have to accept the presence of the accompanying persons, which leaves room for negotiation on that subject. Nothing requires you either to attend mediation if the mediator refuses the presence of the person you choose to accompany you.

Mediation should unfold in respect, and this applies to you, the employer party and the accompanying persons.

6. Advice for your mediation

Here is some general advice that can be useful during mediation:

First, control your emotions. Keep a polite, but firm, calm and confident attitude. By acting this way, you will show your employer that you are able to provide a sound and credible testimony at the time of an eventual TAT hearing. This could


incite your employer to improve his settlement offers. Mediation is only a first step, and such behaviour can lead to a favourable conclusion.

Resist the temptation to argue with your employer. You could accidentally reveal him your best arguments and strategies. They may come in handy in the event of a hearing.

Try to know what motivated your employerʼs gesture(s) and write it down. As we said before, the more you know about your employerʼs criticism and strategies, the better are your chances to answer to them in a hearing before the TAT. Note that in the case of a complaint for dismissal not made for good and sufficient cause, the CNESST can require a written list of your dismissalʼs motives from the employer.

If you have resorted to another organisation for the same problem (Commission des droits de la personne et des droits de la jeunesse (CDPDJ), civil courts, etc.), clearly point it out, it will increase your negotiation power.

View mediation as the possible beginning of the negotiations, and not as the last chance to come to an agreement with the employer. Even if mediation fails, there is a strong likelihood that you will have the occasion to discuss again with your employer before the hearing of your case. Besides, the TAT will offer you another mediation called “pre-decision conciliationʼʼ (see section 10).

According to the rules of ethics described in the CNESST pamphlet of the same name, the mediator should attend to “make sure that the mediation remains balanced by not allowing any form of intimidation or manipulation. Notwithstanding his duty to remain impartial, the mediator must not tolerate any injusticeʼʼ. Even so, we recommend that you put yourself on equal terms with your employer, that is, to enlist a lawyerʼs services if the employer has done so, or if you do not feel you can face your employer.

Leave the mediation if you realize that the employer does not intend to settle the issue or makes ridiculous offers. He may only attend the mediation to get useful information out of you in order to prepare his defence for a hearing.

7. Preparation for mediation

If you agree to take part in the mediation process, it is very important that you prepare in advance for it. In the following section, you will find the main steps to go through to be well prepared for your mediation.

a) First, it is important to properly identify your needs and interests. To do this, ask yourself the following questions:


Do I want to work for this employer again? What are my chances of finding a similar job? At what wage? In how much time?

If I had to choose, what would be my priorities? Reinstatement? Compensation? Recognition of the unfairness of my dismissal? Restoration of my reputation?

What do I wish to obtain as a compensation? What amount of money would be appropriate to compensate for my non reinstatement, that is, the loss of my job? What amount of money would be appropriate to compensate for the harm I suffered?

What about my determination and my patience? What about my financial situation and the one of the company?

b) Then prepare a brief summary, preferably in chronological order, of your situation and the reasons why you have filed one or several complaints. This summary will come in handy when the mediator asks you to expose your version of the facts during mediation. Do not give it to the mediator or to the employer party. Do not name any witnesses.

c) Make a list of the damage (wage losses, moral damages and exemplary damages) you have suffered, and of the expenses entailed by your dismissal, prohibited practices or psychological harassment.

Examples of compensation for lost wages: wages, commission and/or bonus lost, loss of convertible-into-cash sick leave days, loss of car allowances, of a profit-sharing plan, of insurance coverage or of pension plan benefits.

Examples of expenses: travel expenses, counsel fees, job search expenses, reinstatement expenses, medical expenses not covered by an insurance plan, and therapeutic costs.

You should also calculate the other amounts of money due to you according to the Act respecting labour standards, but that are not included in your complaint for dismissal not made for good and sufficient cause or for prohibited practices (unpaid salary, vacation pay, notice of termination compensation, etc.). If the employer has not paid you these amounts, you should file a pecuniary complaint at the CNESST.

d) Decide what are your conditions for your reinstatement in employment: position, work schedule, salary (including the wage increase you would have obtained if you were still employed), return date, withdrawal of certain documents from your employee file, restoration of your uninterrupted service or seniority, etc. If you have suffered psychological harassment, think about the necessary conditions for the restoration of a healthy environment that is free from psychological harassment. However, you should know that in mediation, it is not always easy to obtain reinstatement. If this is what you really want, be ready to go so far as a hearing before the TAT. Otherwise, think of a


plan B.

e) If you believe that reinstatement is impossible or if you do not want reinstatement, ask yourself what amount of money would be appropriate to compensate for the loss of your job (severance pay or loss of job indemnity). To do this, you must evaluate the main factors considered by law agents to set a severance pay, particularly: the nature of the position occupied, the level of accountability of the position, the possibility to hold again a similar position, the duration of your employment relationship, your age, experience, scholarship, the representations made by the employer at the time of hiring, the existence or absence of a disciplinary record, etc.

A severance pay is generally assessed in terms of weeks or months of straight-time pay, plus benefits such as the contribution of the employer to a group insurance or a pension plan. The amount set by the case law is based on an average of two to four weeks for every year of service, without exceeding 24 months, but it depends on the factors mentioned above.

f) Remember to take into account the other recourses that may be available to you in accordance with other laws (Charter of Human Rights and Freedoms, Civil Code, Act respecting industrial accidents and occupational diseases, etc.). Have you undertaken such recourses? If the answer is yes, do these recourses offer good chances of success? What compensations can be obtained with these recourses?

g) If you ask for a letter of reference, think about two or three of your qualities you would like your employer to mention.

h) Make a list of the documents you would like your employer to withdraw from your disciplinary record (or employee file). This could be useful, notably to contest a false accusation that prevents you from receiving employment insurance benefits.

i) Finally, try to get some legal advice from a lawyer. Such advice could provide you with relevant information on the possibility of obtaining a reinstatement in employment or on the amount of the severance pay or of other compensations you are eligible to. Moreover, the lawyer can assess your chances of winning in a TAT hearing. If your chances are good, it will allow you to have higher requirements in mediation. The lawyer can also check if other recourses in accordance with other laws are available.

Having completed these preparations and reflections, you should have a good view of what you would call a satisfying settlement. You should also set a minimum limit below which you will not negotiate. However, do not expect to receive a 100% of what you could get with the TAT. Think more about two thirds. Mediation is a negotiation process, and you will have to water down your wine if you want to come to an arrangement. Otherwise, prepare to wait until the TAT hears your case. You should also clearly prioritize your requests before going in mediation.

If it has not been done yet, you should attend the briefing meeting on mediation


provided free of charge by Au bas de lʼéchelle (ABE). Additional documents will be handed over to you there. You must call in advance to reserve your place.

8. Strategies of negotiation

Of course, there is no magical recipe that ensures the success of your negotiations, but here is some advice that could be useful.

Reinstatement

The first remedy provided for complaints for unjust or illegal dismissal (prohibited practices) is reinstatement in employment.

If you do not want to be reinstated, you should not mention it from the start. If you announce you do not wish to be reinstated in you position, your compensation for wages loss could cease from then on. You would also lose without compensation one of your best bargaining argument with the employer. You should do the opposite: express clearly from the beginning that you loved your job, that it is a big loss to you, and that you will give up the idea of reinstatement with your conditions only if the employer makes a serious offer to you.

Besides, there is a strong chance your employer offers you a severance pay rather than reinstatement. It is true that most employers do not want to reinstate a worker they have fired, and are ready to pay a compensation to avoid it. Remember that mediation allows to obtain compensations that are not provided by the law.

In the case of prohibited practices, if your employer offers to reinstate you with all the wages and benefits you have lost, you may have no choice but to accept. Regarding the other complaints, the right to refuse or not reinstatement can be very tricky. Under certain circumstances, you can demand that more conditions be filled before you accept. For instance, if you have filed a complaint for psychological harassment, you could require your employer to take reasonable action to make the harassment stop. For more safety, consult a lawyer before accepting a reinstatement that does not respect all your conditions.

If you want reinstatement in employment above all, you have to know that the ALS entitles you to claim it with all the wages and benefits lost since your dismissal. The mediator cannot “force” you to convert your reinstatement into a severance pay. If you file only one complaint for prohibited practices, the commissioner that proves you right has to order your reinstatement. On the other hand, after a decision in your favour, the employer may try to negotiate for the payment of a compensation instead of reinstatement. If you filed a complaint for unfair dismissal, the TAT could decide your reinstatement is impossible considering all the circumstances of the case.

If your employer offers you reinstatement, set out your conditions to it and note his answers carefully. Is it the same position you occupied before? With the same salary?


Will you have the same benefits, work conditions and schedule? Will he repay all the wages lost since your dismissal?

If your employer is not willing to make such commitments in writing, his offer may be in fact “a load of hot air”, and you can refuse it. An employer who offers only reinstatement may not be serious in his offer. Perhaps he is trying to make you abandon your complaint to dismiss you again afterwards. Of course you could file another complaint, but you would not be able to go back on your decision and claim the wages and benefits lost at the time of the first dismissal.

Monetary compensations

In the beginning, ask for a little more than what you want to obtain. It is better not to reveal too soon the offer or amount of money you wish for. It will be very difficult to bring the other party to make concessions if he feels you are not making any.

If you want financial compensation, but you think your employerʼs offer is insufficient, you can answer by making a counter offer for a higher amount than what you wish to obtain. Do not let yourself be overawed if the employer makes a very low offer, gets angry or pretends to leave the mediation. It is probably a strategy to impress you or make you lower your requirements. Then you can let him know that you are ready to follow your recourse through, unless he makes an interesting offer in return for the withdrawal of your complaint(s). Your employer may face very expensive legal costs, which can incite him to settle up.

You should never lower your requirements because you receive employment insurance. Of course, you will have to repay the benefits received for the period you have been reimbursed your lost wages, once the case is settled. However, your benefit period may be extended to your advantage, if you remain unemployed (see the following section on the drafting of the agreement to properly distinguish the wages from the other non-refundable compensations, and to know the conditions of repayment).

You also have to know that when there is a rupture of the employment relationship, your employer is required to give you a record of employment (the document you give to the employment insurance when you make an application for benefit). Therefore, he cannot “negotiate” on that. If the reason for leaving appearing on the record is erroneous, other means of contesting are available to you. Call an unemployment support group to learn more.

If possible, do not sign immediately something you could regret afterwards! Note down the offer and ask for a couple days of reflection in order to find out about its real value. If you are refused that time of reflection or if you are pressurized to sign immediately a document, you must be doubly careful! You could be brought to sign a cheap agreement. Remember that it is not mandatory to come to an agreement. On the other hand, an employer that has made a generous offer could take it back if he were given more time to think about it. It is therefore important to prepare well and take legal


advice before the mediation.

Be careful not to give your verbal agreement either if you still doubt you will accept the settlement offer, because it will be considered in the same way as a signed agreement.

9. Drafting of the agreement

Once you have given your oral agreement or signed the agreement, you cannot change your mind. It is thus very important that it suits your expectations before you accept it. Also remember that the more the agreement is precise and detailed, the easier it will be for you to make a complaint in case of violation of the agreement from the employer. Here are some tips to remember for the drafting of the agreement.

If you agreed on reinstatement in employment, make sure that all the conditions of the reinstatement are included in the written agreement (see the examples of conditions in section 7 d). If you are to be reinstated, remember that you are still entitled to the reimbursement of the wages you lost since your dismissal and the other related costs. These amounts must also be wrote down in the agreement.

If you agreed on a money offer, note all its conditions in writing: precise amount (not only in terms of salary weeks), settlement date, life insurance transfer, pension fund, transfer in a RRSP (if you were employed before 1996), etc.

To reduce the tax payable on your money settlement, it could be beneficial, once the amount of your compensation is fixed, to allocate (split) it into several amounts:

one that represents the reimbursement of the incurring costs;

one that represents the compensation for lost wages and benefits;

one that represents the compensation for the moral damage suffered and;

one that represents the compensation for job loss or separation, if there is no reinstatement in employment. Besides, instead of writing down “severance pay” in the agreement, we suggest you to specify in writing that you receive the amount as a compensation for giving up reinstatement and that the court had jurisdiction to order reinstatement.

This practice will not cost more to your employer (tell him!), but it requires his consent and must be included in the written agreement. It may also allow you to reduce the amount to repay to the employment insurance. The compensation to give up reinstatement, the reimbursement of reasonable incurring costs and sometimes the compensation for moral damages are not considered to be wages by Service Canada. Therefore, you will not have to repay them.


If a money settlement occurs, and if you received money from the social assistance program or employment insurance benefits during the period covered by the agreement, you must inform the concerned organization of it, that is, the ministère de lʼEmploi et de la Solidarité sociale or Service Canada. Then you will have to show them the original of the agreement, that you will keep, and give them a copy. In the case of employment insurance benefits, the agent will ask the employer to hand the amount due to you directly to Service Canada (ref: Memorandum following an out-of-court settlement, a pamphlet made by the CNESST).

If you agreed on a letter of reference and its content:

• you should require to see the letter before you sign the agreement and;

• allow a written commitment from the employer that certifies he will not refute the letter if potential employers call him to enquire.

The employer will probably want you to sign a receipt in full discharge, that is, a renunciation of all your recourses (CNESST, Commission des droits de la personne et des droits de la jeunesse (CDPDJ), civil courts, etc.) in exchange for his settlement offer. If you accept, make sure the agreement includes the payment of the amounts you would be entitled to according to that group of recourses. If you do not want to give up certain recourses, you should advise the employer as soon as possible in the negotiations. If you come to an arrangement on that subject, it is important to clearly write down in the agreement that you wish to preserve your rights on these recourses. If you accept to sign a receipt in full discharge, it would be wise to include in the agreement an employerʼs renunciation of legal proceedings (mutual full discharge).

Your employer will probably ask you to accept that the agreement contain a confidentiality clause. This clause will prevent you from revealing the content of the settlement to other people. It is up to you to decide whether you are comfortable with the addition of a such clause or not, but you have to know that it is a standard practice, and that most employers insist on it.

10. Pre-decision conciliation

If no agreement has been made, another mediation called “pre-decision conciliation” can take place, but this time with the TAT. This pre-decision conciliation is offered very late in the process, that is, in the last weeks before the hearing. Pre-decision conciliation is also free, voluntary, confidential and without obligations. As for mediation with the CNESST, it can be very beneficial to take part in it, even if the first mediation was a fiasco.

A lawyer from the CNESST will represent you free of charge during the pre-decision conciliation. His presence and the closeness of the hearing date will exert a greater pressure on the employer to obtain a settlement.


To get the TATʼs approval, any agreement that took place at that stage must be put in writing, submitted to the TAT by one of the parties within six months, and signed by both parties and the mediator. This will allow the TAT to intervene, if necessary, to enforce the settlement if the employer delays respecting it. An oral agreement cannot be submitted for approval.

11. Help your lawyer

• Find potential witnesses and keep in touch with them (colleagues, including those who left the company, clients, users, etc.);

• Prepare a list of the witnesses with their addresses and phone numbers;

• Note down chronologically in a log all the relevant events that occurred in the company before, during and after your dismissal;

• Retrieve, classify or keep all documents related to your job in chronological order (contracts, policies, notices, emails, etc.);

• Keep the bills for the expenses brought about by your dismissal, and classify them in chronological order and by theme (lawyer, psychological support, medication costs, job search, etc.);

• Present a well-ordered copy of these documents to the lawyer in charge of your case (keep the original);

• Prepare a list of questions;

• Answer frankly to all his questions and do not hide anything from him.

The importance of standing up for your rights

Standing up for your rights is the best way to maintain them. By doing this, you will regain your self-esteem while compelling the employer to respect the labour laws. Since you know your rights better, your chances of getting a satisfying settlement have increased considerably. Take heart and keep us informed of your mediation experience.

Support us!

Au bas de lʼéchelle is fighting to improve the work conditions of those who find themselves back… at the bottom of the ladder! The organization analyses the situation of non-union workers and publishes various analysis and claims documents on labour laws. It leads campaigns and political actions to defend and improve the rights of non-union workers, it takes part in public consultations on subjects related to their rights, and also intervenes with political bodies. Au bas de lʼéchelle thus proposes


improvements to existing laws, and some of them concern your actual situation.

You want to learn about and support the actions that Au bas de lʼéchelle is taking in favour of the non-union workers? You can make a donation by visiting our website, www.aubasdelechelle.ca, and by clicking on “Faites un don”. You can also make a donation by becoming a member of Au bas de lʼéchelle. This will also allow you to take part in the democratic life of our organization! Moreover, you will receive our news bulletin, which are issued three time a year. For more details, call or leave a message at (514) 270-7878.

WARNING: The information contained in this document must only be considered as a reference and cannot replace legal advice.

January 2016

mediation at the commission des normes, de lʼéquité, de la ... 2016.pdf · even if you choose...

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