In 2015, the Court of Appeal of Quebec has had opportunities to
revisit how an employer must justify termination for a serious
reason (cause). In so doing, the Court reminded us that a
legitimate business rationale for termination of employment does
not necessarily mean a serious reason at law for termination
In Corporatek, the employer, a software development
company, terminated the employment of its Vice-President of Legal
Affairs, alleging cause and citing a number of deficiencies,
including: (i) lack of fit with the firm culture and integration
with other team members, (ii) subpar performance (e.g. a
number of incomplete or erroneous legal documents or opinions);
(iii) breach of the confidentiality policy, and (iv) excessive
absenteeism. The employer stressed that The employee was subject to
high behaviour and performance standards, considering that she held
the title of Vice-President.
The Superior Court rejected a number of the employer's
claims, including its characterization of the authority and status
of The employee.
However, the Court recognized that the employee committed a
number of mistakes in her work. Nevertheless, noted the Court, and
notwithstanding her title of Vice-President, The employee was still
entitled to understand the allegations made against her and benefit
from an opportunity to correct her behaviour. She should have been
informed that her employment was in jeopardy and advised of the
reasons therefor. It was her superior's responsibility to
ensure that this process was followed.
The Court of Appeal opined that the Superior Court judge was
justified in holding that there was no serious reason for
termination without notice, despite the fact that he recognized
shortcomings in the employee's performance.
The Court of Appeal stressed that (i) the tasks and hierarchal
status of the employee were unclear, (ii) her superiors did not
intervene when her colleagues were refusing to collaborate with
her, and (iii) her employer failed to specify its expectations.
In another 2015 decision, Premier Tech ltée v.
Dollo, 2015 QCCA 1159, previously discussed by our colleagues, the Court of Appeal also
notes that the requirement of a serious reason for termination of
employment (without notice) must fully apply no matter the status
of the dismissed employee.
Thus, in the absence of shortcomings that rise to the level of
severity and frequency required to constitute a serious reason,
simply losing faith in a senior employee does not absolve an
employer from its legal duty to provide reasonable notice of
termination of employment, even though this loss of confidence may
well constitute a legitimate and sufficient business reason for
terminating the employment relationship.
Simply put, in a non-disciplinary context and absent exceptional
circumstances, prior to terminating employment for serious reason,
an employer must first advise the employee that he faces the risk
of termination for a serious reason. The employer must also explain
the reasons why the employee faces the risk of dismissal and
provide an opportunity for redress within a reasonable period of
time. This would apply no matter the employee's status or
In the absence of such a process undertaken in good faith, an
employer may well have legitimate business reasons to dismiss an
employee. However, to the extent that a good business rationale
does not make for a sufficient serious reason at law, an employer
may still be held to its obligation to provide reasonable notice of
termination of employment.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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