Dismissal for incompetence: are we gaining or losing ground?

Mtre Rhéaume Perreault, CRIA, Adm. A.
Fasken Martineau DuMoulin

On October 4, 2017, the Superior Court rendered an important decision regarding dismissals for incompetence. This decision will definitely have a major impact on how employers will manage employees who lack the necessary skills to carry out their work.  The decision applies to small and large corporations alike, both unionized and non-unionized¹. 

The Facts
The employer, a school board, dismissed an employee for incompetence. This employee had problems with productivity and efficiency, and the work he did was filled with mistakes. In order to resolve this problem, the employer requested that he sign a Performance Improvement Plan (“PIP”) in which the employee undertook to improve his performance. However, the employee failed to make any progress, and the employer met with him on several occasions to address this problem. Before dismissing the employee, the employer offered him another position as receptionist, asking for a response within three (3) days. In light of the employee’s refusal and his inability to improve his work, he was dismissed.

The Decisions
The arbitrator Jean Ménard upheld the grievance filed by the employee in respect of his dismissal.  Although he acknowledged his inability to perform his duties adequately and the need for the PIP, he felt that the employer had acted unreasonably when it gave the employee only three (3) days to decide whether or not to accept the position as receptionist. The arbitrator retained jurisdiction over the appropriate solution. This decision was subject to a motion for judicial review. 

The employer alleged that the arbitrator should have followed the criteria that usually apply, namely:

• the employee must be aware of the employer’s company policies as well as the expectations set for him;
• he was warned on numerous occasions of his shortcomings;
• he was given the necessary support to remedy his shortcomings and attain his objectives;
• he was given a reasonable period of time to adjust;
• he was warned that he risked being dismissed should he fail to show any improvement in his work. 

The union, for its part, alleged that Québec courts must comply with an additional criterion which applies elsewhere in Canada: « The employer must establish an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and that reasonable efforts were made to find alternate employment within the competence of the employee. »

The Superior Court judge concurred with the union’s position, and saw no reason why a test that applies in Canada should not be applied in Québec.  He writes: “It defies logic that the rules governing employers and employees in potential cases of administrative dismissal for incompetence should be different in Québec than in the rest of Canada. Such a differentiation would need to have been enacted by the Quebec legislature. It did not pass any legislation to that effect.”

The court therefore quashed the Motion for judicial review, while emphasizing that before dismissing an employee for incompetence, the employer must make “reasonable efforts (…) to find alternate employment within the competence of the employee.”

Conclusion
While this decision may not be enshrined as an absolute principle, it will definitely make a lot of ink flow. Lawmakers may now be tempted to demand that employers “make reasonable efforts to reassign the employee to another compatible position” before proceeding with a dismissal for incompetence.  

¹Commission scolaire Kaivik v. Ménard, 2017 QCCS 4686.