Do Employers Really Have an Obligation to “Accommodate” an Incompetent Worker? Must the Worker Be Offered Another Position Within the Enterprise?

For several years now, a case law controversy has been repeatedly resurfacing regarding the obligations of an employer in the case of the administrative dismissal of a worker for incompetence. Is it enough to comply with the five criteria that have emerged from the leading case in this regard, the Costco decision, or must the employer make reasonable efforts to reassign the worker to another position within the enterprise (what is termed the sixth criterion)?

The Kativik saga

On May 31, 2019, the Quebec Court of Appeal rendered a brief and highly anticipated judgment on this question. The bench of three judges unanimously decided that the arbitrator initially seized of the grievance filed on behalf of a worker challenging his dismissal for incompetence, had rendered a reasonable decision in finding that the employer should have taken steps to find a reasonable alternative solution to dismissal.

It should be pointed out that the circumstances of this case were very singular: over the past few years, the administrative processing of the worker’s situation was deemed deficient and the employer’s interventions were considered intemperate and ill-advised.

The Court of Appeal, however, did not rule on the merits of the debate, and limited itself to finding that the arbitrator’s decision fell within the range of reasonable outcomes, while noting that another arbitrator could have come to a completely different conclusion.

What to do going forward?

An analysis of the most recent decisions rendered in this regard yields an interesting insight: in general, when a tribunal decides to apply the sixth criterion, one or more of the five criteria under the Costco decision were not observed.

Thus, once the employer notices deficiencies in one of his workers’ performance, action must be taken to redress the situation. In doing so, the employer must bear in mind the guidelines laid down in the Costco decision, namely:

• the worker must be made aware of the employer’s policies and expectations regarding his performance;
• his shortcomings must have been pointed out to him;
• he must have been given the necessary support to address his performance and achieve the objectives expected of him;
• he must have been given reasonably sufficient time to adjust;
• he must have been warned of the risk of dismissal if there is no improvement in his performance.

By scrupulously respecting each of these criteria and duly documenting each of the steps taken, the employer will be able to demonstrate more easily that he acted in good faith by effectively taking charge of the worker’s situation and attempting to resolve any problem related to his incompetence or unsatisfactory performance. The odds will then be in the employer’s favour if a dispute ends up in court, and he will have a good chance of avoiding the application of the sixth criterion, that of “reassigning” the worker to another position within the enterprise.

That said, it is likely that the opposing lines of case law on the validity of the sixth criterion will continue to coexist for the next few years.