Canada: Saddled With An Incompetent Employee? Are You Really Obliged To Reassign Him To Another Job Before Terminating His Employment?

The legal requirements for terminating an employee for incompetence have always been well-known in Québec. It was established long ago that before terminating the employment of an employee on grounds of incompetence, the employer was obliged to:

  1. Inform the employee of the company's policy and the employer's expectations;
  2. Point out the employee's shortcomings;
  3. Offer the employee the necessary support to enable him/her to correct his/her performance and reach the objectives concerned;
  4. Give the employee a reasonable time to make adjustments; and
  5. Warn the employee of the risk of dismissal should there be no improvement.

These five criteria were set forth by the Court of Appeal in the Costco1 decision, and have been unanimously followed since 2005.

Additional Criterion Added by the Superior Court in the Kativik Case

That being said, as we wrote in a previous article, the Superior Court has sown doubt, since October 2017, about the criteria applicable in dismissal for incompetence cases. In Commission scolaire Kativik c. Ménard2 (Kativik), the Superior Court added an additional criterion to the five mentioned above. The Superior Court held that before the employment of any employee could validly be terminated for administrative reasons, the employer was also obliged to attempt to reassign the incompetent employee to some other job for which he or she would be better qualified.

According to the Superior Court, this obligation of reassignment would constitute an "obligation of means", which means that an employer should take reasonable means to try to reassign an incompetent employee, without having any obligation to the results. In the Kativik case, the Superior Court added that this requirement of reassignment would not apply in all cases, and it ruled that certain characteristics of the position and the business in question should be taken into account by employers. However, the Court did not explain to what extent those factors might have an impact.

As mentioned in our previous article, the motion for leave to appeal the Kativik decision was allowed by the Québec Court of Appeal on February 15, 2018, particularly on the ground that the decision seemed contrary to the established line of Québec jurisprudence in dismissal for incompetence cases, but no decision has yet been rendered on the appeal.

The Moutis Case

It is noteworthy that despite the Superior Court's decision in Kativik, a number of subsequent decisions rendered by the Administrative Labour Tribunal (the ALT) and by some grievance arbitrators have not followed the new test announced in Kativik and have articulated their firm disagreement with it3.

The recent ALT decision in Moutis et Bombardier4 is a case in point.

In this matter, the employer, Bombardier, had dismissed Mrs. Demetra Moutis, on the ground that she was incapable of performing work equivalent to what was expected of a Grade 3 engineer, which was the position for which she had been hired. Mrs. Moutis then filed a complaint under section 124 of the Act respecting labour standards, alleging dismissal without good and sufficient cause.

Responding to that complaint, Bombardier alleged that Mrs. Moutis was involved in a performance improvement plan at the time when her employment came to an end: Her failures had been pointed out to her on numerous occasions; she had obtained the necessary support to correct her performance and reach the objectives required; she had enjoyed a reasonable time to make adjustments; and, she had been warned of the risk of dismissal should she show no improvement. In other words, Bombardier pleaded that it had followed and applied all the criteria of the Costco judgment.

For her part, Mrs. Moutis pleaded that Bombardier also had an obligation to offer her another position before terminating her employment.

The ALT, however, expressly refused to apply that new requirement and contented itself with applying the Costco tests. The ALT nevertheless found that, even supposing that the obligation to reassign an incompetent employee existed, it was satisfied that Bombardier had no job to offer Mrs. Moutis. The evidence had, in fact, shown that Mrs. Moutis was incapable of meeting the objectives of any other Grade 1 or 2 engineering jobs. It would therefore have been pointless for Bombardier to offer her any such position. Under those circumstances, Mrs. Moutis' complaint was dismissed.

Some Unanswered Questions

In reaching its conclusion in Moutis, the ALT relied on another decision (the Diabo5 case), where the Tribunal had also refused to apply the new reassignment criterion to an incompetent employee, on the grounds that that requirement was variable in its scope. The following passage is particularly telling on the subject:


" Either the obligation applies to all employers or it applies to none. In fact, depending upon the size of the company, the obligation would be greater. On what criteria should the decision-maker determine that such and such an enterprise would be obliged to offer a position? On the basis of its net sales, of the number of employees in the department concerned or in any business, of its specialty or its reputation? At first glance, the list of criteria appears inexhaustible. That can only lead to inequities. Let us stop asking questions right there."

To those questions, we would add the following ones: would the employer's duty to reassign an employee goes as far as reassigning him or her to another establishment of the same employer, or even to another subsidiary of the same company? And what would happen in the case of a company having places of business around the world — would the employer's obligation then extend to having to assess all of the jobs available in all of its places of business? And again, would the duty to reassign an incompetent employee within the business go as far as imposing a demotion on the employee, including a salary cut? If so, would the employer not then risk exposure to a claim for constructive dismissal of the employee?

All these unresolved questions clearly illustrate that the application of the criterion of reassignment of employees poses a number of practical and legal problems. That is why we are not surprised to learn that certain decision-makers prefer to continue applying the five familiar criteria governing dismissal for incompetence, rather than imposing any additional burden on employers.6

We should, however, mention the fact that certain decision-makers have opted, in some decisions, to apply the new test developed in Kativik7.

Conclusions and Recommendations

In the light of the foregoing, and taking into account the pending appeal in Kativik, there is certainly a jurisprudential controversy about the existence of an obligation on the part of an employer to make reasonable efforts to reassign an incompetent employee to another job.

Accordingly, as long the Court of Appeal has not yet decided the issue, we recommend that employers try, as far as possible, to reassign incompetent employees before terminating their employment for administrative reasons.

We also note that in virtually all the decisions rendered in incompetence cases since the Kativik judgment, employers have pleaded that, in the event that they had a duty to reassign incompetent employees, such reassignment would have been ineffective, or would have been impossible, in the circumstances.

One thing is certain: while awaiting the Court of Appeal's decision, Moutis stands as an encouraging example for employers, where the new reassignment requirement for incompetent employees was not applied by the ALT. In any event, we would hope that the Court of Appeal's decision will provide some needed clarification as to the application of this requirement, the scope of the operation which employers will then have to undertake, as well as the factors that must be taken into account by employers in assessing other available jobs, if any.


1 Costco Wholesale Canada Ltd. c. Laplante, 2005 QCCA 788.

2 Commission scolaire Kativik c. Ménard, 2017 QCCS 4686 (Motion for leave to appeal allowed, 2018 QCCA 239).

3 See, for example, Moutis et Bombardier inc., 2018 QCTAT 3478; Diabo et Kahnawake Sharotiia'Takenhas Community Services, 2018 QCTAT 1508; Syndicat Des Employé_E-S De Métiers D'Hydro-Québec, Section Locale 1500, SCFP-FTQ et Hydro-Québec (Jean-Philippe Charbonneau), 2018 QCTAT 268 ; Aéroports de Montréal et Syndicat des gestionnaires de premier niveau (CSN) (Benoît Bastien), 2017 QCTAT 368.

4 Moutis et Bombardier inc.., 2018 QCTAT 3478.

5 Diabo et Kahnawake Sharotiia'Takenhas Community Services, 2018 QCTAT 1508.

6 See the decision mentioned in note 3.

7 See, for example, Roon et Centre de la petite enfance Les Maisons enjouées, 2018 QCTAT 3610, where the ALT found that the employer had not shown that it had made any serious and substantial effort to reassign an educator to another position before dismissing her.

About BLG

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

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

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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