Introduction

Employers in Quebec that wish to dismiss employees for incompetence may now need to accomplish an additional step before doing so. In Commission scolaire Kativik v Ménard (2017 QCCS 4686) the Quebec Superior Court confirmed an arbitration decision in which an additional criterion was added to those established by the Court of Appeal in Costco Wholesale Canada Ltd v Laplante (2005 QCCA 788) and applied since by tribunals in Quebec.

According to the superior court, employers must also verify whether another more suitable role is available for an employee before proceeding with termination.

Facts

The employer, a school board, dismissed an employee for incompetence. The employee had productivity and efficiency issues, and handed in work riddled with errors. In order to resolve the situation, the employer asked the employee to sign and participate in a performance improvement plan. However, his performance showed no improvement.

Before terminating the employee, the employer offered him a role as a receptionist. The employer asked him to respond to the offer within three days, although the role was posted for other employees for a longer period. The employee declined the offer.

As the employee had declined the offer and been unable to improve his performance, the employer terminated his employment. The union filed a grievance on the employee's behalf to contest this decision.

Arbitrator's decision

The arbitrator allowed the grievance. He acknowledged that the employee was unable to perform his duties adequately, despite the employer's support. However, he was of the opinion that the employer terminated the employee in an abusive manner, mainly because it should have considered a reasonable alternative to terminating his employment.

The arbitrator held that it was unreasonable for the employer to give the employee only three days to consider the alternative employment offer. The employer applied for judicial review of this decision.

The employer alleged that the arbitrator should have followed the criteria established in the Costco decision, which do not include the duty for an employer to attempt to find a suitable role in the business for the employee. These criteria state that the performance issues must be brought to the employee's attention and that he or she must be:

  • made aware of the company's policies and expectations;
  • provided with adequate support to correct his or her performance;
  • given a reasonable delay to correct his or her performance; and
  • made aware that, in the event that his or her performance does not improve, he or she may be dismissed.

Superior court decision

The superior court dismissed the employer's application for judicial review and confirmed the arbitration decision based on the arbitral decision in Edith Cavell Private Hospital v Hospital Employees' Union, Local 180 ((1982) 6 LAC (3d) 229). This decision held that, in such circumstances, the employer must demonstrate that "reasonable efforts were made to find alternative employment within the competence of the employee". Further, in 2004 the Supreme Court of Canada confirmed an Alberta decision that applied the principles of the Edith Cavell case.

Therefore, despite the fact that these decisions were not rendered in Quebec and the Court of Appeal in Costco did not apply this criterion, the superior court opined that it should apply in Quebec. It reasoned that it would be illogical that the rules on dismissal for incompetence differ in Quebec from those in other provinces.

The employer filed an application for leave to appeal with the Quebec Court of Appeal.

Other jurisdictions

In British Columbia, the Edith Cavell case is frequently cited. It has been found to be fatal to employers' decisions to terminate employment for incompetence where alternative available employment has not been offered. Nevertheless, adjudicators do not always reinstate employees in the event that the employer failed to demonstrate that "reasonable efforts were made to find alternative employment within the competence of the employee" (BC Ferry Services Inc v British Columbia Ferry and Marine Workers' Union, 2013 CanLII 100803 (BCLA)).

However, the Ontario courts, arbitrators and labour boards do not consider the aforementioned criterion and apply a test similar to the one developed in the Costco decision.

Comment

In the event that the Court of Appeal grants the employer's application for leave to appeal, it will be interesting to see whether the court will ultimately add the criterion to those that it applied in the 2005 Costco decision. If it does, it will impose a new, significant and somewhat uncertain obligation on Quebec employers that wish to terminate an employee for incompetence.

In addition, if the Court of Appeal confirms the superior court's decision, it will be interesting to follow how arbitrators, the courts and labour boards will apply this additional criterion, and to see whether the decision will influence the state of the law in other provinces that have been applying a test similar to that in the Costco decision.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Rhéaume Perreault or Michael Adams at Fasken Martineau DuMoulin LLP by telephone (+1 514 397 7400) or email (rperreault@fasken.com or madams@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.