On May 31, 2019, the Court of Appeal of Quebec rendered its much anticipated decision in the matter of Commission Scolaire Kativik c. Association des employés du Nord Québécois (“Kativik”). Before the Court of Appeal’s decision, there was much uncertainty and debate regarding the applicable criteria for proceeding with an administrative termination of employment due to poor performance.

Prior to Kativik, the Quebec courts employed the following test to determine if an employer could validly proceed with an administrative dismissal for poor performance:

  1. The employee must have been aware of the company’s policies and of what the employer expected of him/her;
  2. The employee must have been made aware by the employer of the deficiencies in his/her performance;
  3. The employee must have received the necessary support to remedy his/her performance deficiencies and meet the performance objectives set by the employer;
  4. The employee must have been given a reasonable amount of time to adjust in order to meet the objectives set by the employer; and
  5. The employee must have been informed of the risk of termination of employment if he/she failed to improve his/her performance.

This test, dating back to the 2005 Quebec Court of Appeal decision in Costco Wholesale Canada Ltd. c. Laplante (“Costco”) was largely based on an arbitral award originating in British Columbia in the matter of Re Edith Cavell Private Hospital and Hospital Employees' Union, Local 1801‎. However, where the Edith Cavell decision set out that in addition to the above, employers had to make reasonable efforts to find alternative employment within the competence of the employee, no such requirement was typically imposed on employers in Quebec. However, in 2017, the Quebec Superior court imposed this additional requirement in Kativik, injecting uncertainty into the law.

Background

In Kativik, the employee was employed by the Kativik School Board from November 1998 until his employment was terminated for poor performance on September 17, 2014. The employee worked as an administrative technician but had difficultly performing the tasks associated with the role. After many attempts by his supervisor to improve his performance, the employee was put on a three month Performance Improvement Plan (the "PIP").

During this period the employee’s supervisor held numerous meetings with him and offered help, but his performance did not improve. The employee was then advised that failure to meet the objectives of the PIP would result in termination of his employment. However, he was offered a position as receptionist as an alternative to continuing with the PIP and possible termination. The employee was given three days by the employer to accept this offer, and subsequently refused it, preferring to stay in his existing position and continue the PIP. Within the weeks that followed, the employee was ultimately unsuccessful in meeting the requirements of the PIP and was terminated for administrative reasons, namely his poor performance.

Since the employee was unionized, a grievance for unjust dismissal was filed. The arbitrator allowed the grievance and found that the termination was abusive. He further held that the employer had failed to meet its obligation to reassign the employee to less demanding duties and to find a reasonable alternative solution to the employee’s administrative termination. He further admonished the employer for requiring that the employee respond to the offer of the receptionist position within only three days, when the job posting was still open and the deadline for others to submit their applications was later than the amount of time provided to the employee to respond.

The employer then applied to the Superior Court of Quebec for judicial review of the arbitral award, arguing that in requiring the employer to reassign the employee to less demanding job duties instead of proceeding with the administrative termination, the arbitrator imposed an obligation on the employer that did not exist under Quebec law, as it was not a requirement set out by the Court of Appeal in Costco.

In October 2017, Justice Pierre-C. Gagnon of the Superior Court of Quebec held that the arbitrator had rendered a reasonable decision, and dismissed the application for judicial review. In doing so, he held that over the years, the "Edith Cavell test" has been applied across Canada, including in Quebec, and that it includes the criterion requiring the employer to make reasonable efforts to reassign the employee to another compatible position. However, he specified that this is an obligation of means, and that while it does not find application in all cases, it was wrong to argue that it never finds application in Quebec.

The Court of Appeal ruling

The employer sought and obtained leave to appeal the Superior Court’s judgment. However, on May 31, 2019, the Court of Appeal dismissed the appeal and upheld the arbitral award. Although the Court of Appeal disapproved of the fact that the Superior Court judge undertook his own review of the law pertaining to administrative terminations for poor performance in order to arrive at the conclusion that the arbitrator’s ruling was reasonable, it agreed that he had nonetheless come to the proper conclusion. Despite the fact that the arbitrator’s approach was not a common one, in that it departed from most jurisprudence on the matter, and that another decisions-maker may have come to a different conclusion, the arbitral award in this case was not unreasonable.

However, the Court of Appeal clarified that determining whether a termination for poor performance is justified in any particular case depends on the context and the facts of each case. In this case, the arbitrator weighed all of the facts put in evidence before him and found that because of the specific circumstances of the case, the employee’s termination was abusive in light of the particular context and the lack of steps taken by the employer to find a reasonable alternative to the termination. However, this did not mean that the arbitrator sought to impose a systematic obligation on all employers to reassign poor performing employees to other positions before terminating them for administrative reasons.

Conclusion

The facts and circumstances of each case will dictate whether an employer is required to make reasonable efforts to reassign an employee to another suitable position before proceeding to terminate for poor performance. This requirement is not a rigid additional criteria to be added to the Costco criteria that must be applied in every situation. However, what is apparent from Kativik is that Quebec employers can no longer assume that they can proceed with a justified administrative termination for poor performance by simply meeting the five requirements set out in Costco. Employers must at least consider whether, in the particular circumstances of their particular poorly performing employee, a reassignment to another suitable position is a possible option.