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

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.

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.

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