Canada: Dismissal Of An Incompetent Employee: The Superior Court Weighs In On The Matter Of The Employer's Obligation To Reassign The Employee Prior To Dismissal

Last Updated: December 6 2017
Article by Kassandra Church and Charles Wagner

A ruling rendered by the Honourable Justice Pierre C. Gagnon of the Superior Court1 revisits the test proposed by the Québec Court of Appeal in 2005 in the Costco Wholesale Canada Ltd.2 matter with regards to administrative dismissal for incompetence. The Superior Court rules that, before proceeding with the dismissal of an incompetent employee, the employer must (i) follow the five criteria outlined by the Court of Appeal and (ii) have made a reasonable attempt to find an alternate solution to dismissal. We will examine this matter in further details below.

Summary of the facts

The Kativik School Board hires Mr. Harry Adams to act as replacement for a secretary-receptionist position in an adult education centre. The following year, the School Board offers him a permanent position as secretary. Five years later, in 2004, Mr. Adams obtains a newly created position as administrative technician.

Evidence shows that for nearly ten years, the School Board did not address any reproach to Mr. Adams pertaining to his job performance. However, things change in fall 2013 with the arrival of a new director. Soon after her arrival, the director notices that Mr. Adams' productivity is an issue. More specifically, evidence shows that the sole task Mr. Adams is actually responsible for performing keeps him occupied for the equivalent of only three work days per month. Moreover, the new director realizes that the quality of the plaintiff's work is deficient and that he makes serious errors in performing his tasks.

The solution retained to remedy the situation is to have Mr. Adams follow a three-month performance improvement plan that sets out the objectives to be met by him and the support measures to be provided. However, Mr. Adams was not able to achieve the objectives set out in this performance improvement plan and continued to make errors.

Faced with Mr. Adams' failure to achieve the objectives, the School Board offers him a transition to a position as a receptionist, giving him three days to refuse or accept it. This proposal is subsequently refused by Mr. Adams and, a few weeks later, the School Board dismisses him.

Decision of the arbitrator Jean Ménard

The arbitrator notes that the Employer assigns Mr. Adams an administrative technician position whereas, in reality, his tasks do not correspond in any way to this job category. That being said, the arbitrator deems that the Employer had the right to assign him new tasks when the director arrived.

The arbitrator concludes that the School Board was justified in indicating the failure of the job performance improvement plan and the incompetence of Mr. Adams by stating that the proof was "overwhelming" concerning his inability to do his work.

However, the arbitrator goes further and determines that the plaintiff's dismissal is wrongful, since the School Board, in his view, failed in "its obligation to find a reasonable alternative solution to the dismissal of Mr. Adams"3 (TRANSLATION). In other words, the arbitrator is of the opinion that the School Board was, under the circumstances, required to reassign the employee to less demanding tasks.

The arbitrator goes on to say that it was unreasonable to provide the plaintiff with only a three-day reflection period to deliberate whether he would accept or refuse the receptionist position.

In conclusion, the arbitrator points out that the Employer should have involved the union with regard to formulating a job performance improvement plan for Mr. Adams, even if its management right allowed it to act without the union. In his opinion, the Employer thereby "deprived itself of a valuable tool"4 (TRANSLATION), since the union would have been able to help it come up with an alternative to the dismissal.

Consequently, Arbitrator Ménard declares the annulment of the plaintiff's dismissal in his arbitration decision of March 27, 2015.5 Subsequently, the arbitrator renders a second decision on December 5, 2016, regarding the appropriate remedy to take further to the annulment of the dismissal.

Superior Court judgement

The Superior Court rejects the judicial review filed by the School Board. Essentially, the Employer alleged that Arbitrator Ménard had mistakenly imposed upon it a reassignment obligation that does not exist under law of the province of Québec. Alternatively, the Employer claimed that if such a requirement existed, it had been fulfilled when it offered Mr. Adams the receptionist position prior to dismissing him.

In its judgement, the Superior Court concludes that the common law test imposed on an employer seeking administrative dismissal of an incompetent employee does apply under Québec law. If any discrepancy were to exist regarding the treatment of employees in Québec compared to those in the rest of Canada, then it would be the legislator's responsibility to make that choice. In that respect, the Honourable Justice Gagnon writes the following:

[88] It is illogical for the rules governing both employers and employees, in a potential situation involving administrative dismissal for professional deficiency, to be different in Québec compared to the rest of Canada.6  (TRANSLATION)

The Superior Court confirms that a sixth criterion is to be added to the test proposed by the Court of Appeal of Québec in the Costco Wholesale Canada Ltd. matter. Thus, employers in Québec as well as those in the other provinces must comply with the following six criteria:

  1. The employee must be aware of the company policies and the standard his employer expects him to meet;
  2. The employee's deficiencies have been communicated to him;
  3. The employee received the necessary support to improve his performance and meet the standard;
  4. The employee was afforded a reasonable opportunity to make changes;
  5. The employee received warning that a failure to improve could result in a dismissal;
  6. The employer must demonstrate that it made reasonable efforts to find alternate employment for the employee in another compatible position.

The Court therefore confirms that the arbitrator reasonably concluded that the Employer had wrongfully dismissed the plaintiff by not making a reasonable effort to find an alternate employment solution to his dismissal. Moreover, the Court overturns the alternative plea of the School Board, whereby the Board claimed to have fulfilled its reassignment obligation by offering a receptionist position to Mr. Adams. The Court confirms that the arbitrator did not render an unreasonable decision and he could conclude that the offer to reassign the plaintiff made by the School Board was contrived and insincere.

Key findings in this matter

An obligation of reassignment prior to dismissing an incompetent employee now falls on employers following the rejection of an appeal by the Superior Court. It is, nevertheless, an obligation with regard to the means and not the end.

It is also important to understand that the judgement rendered by the Superior Court does not impose this reassignment obligation on all employers in every situation. For example, the Court mentions that this obligation would not be applicable where an employee is hired to perform specific tasks or where no other suitable position exists.

To summarize, the following specific facts of this matter have led the adjudicator of the grievance to render such a decision:

  • The plaintiff had more than ten years of service;
  • The plaintiff was bound by a collective agreement that provided him with job security;
  • The productivity issues were not related to a decrease in the employee's abilities, but rather, to a modification of his tasks and responsibilities;
  • The Employer failed to involve the union in the process that it had undertaken;
  • The evidence shows that there was another less demanding position available, but that the Employer had given the plaintiff a reflection period that was much too short.

Nevertheless, the arbitrator has weighed in on the employer's management right to a greater extent than had previously been seen in case law. As a result, it is very important for an employer to have a rigorous method for evaluating an employee's job performance, since a lack in this regard could lead to the employee's reinstatement.

There is likely to be a growing number of grievances disputing the decision taken by an employer to dismiss an employee because of his job performance. In addition to satisfying the criteria set out in the Costco Wholesale Canada Ltd. affair, employers must henceforth be prepared to justify their decision by demonstrating that they made reasonable efforts to reassign the employee to another position more closely aligned with the employee's qualifications and skill set.

Footnotes

1 Commission scolaire Kativik v. Ménard, 2017 QCCS 4686 (Pierre-C. Gagnon, s.c.j).

2 Costco Wholesale Canada Ltd v. Laplante, 2005 QCCA 788.

3 See par. 131 of the decision rendered by Arbitrator Ménard on March 27, 2015.

4 See par. 129 of the sentence rendered by Arbitrator Ménard on March 27, 2015.

5 It is important to note that the School Board filed an initial appeal for judicial review, which was dismissed by the Honorable Justice Serge Gaudet on the basis of prematurity (see 2016 QCCS 3397).

6 See par. 88 of the ruling.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Kassandra Church
Charles Wagner
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions