The Employer's Obligation to Make Reasonable Efforts to Reassign an Employee Prior to Dismissal for Incompetence

For several years, Québec employers have been subjected to a number of requirements before dismissing an incompetent employee:

The employee must be aware of the company's policies and the employer's expectations in this regard; The employee's performance deficiencies must have been pointed out to him/her; The employee must have had the necessary support to correct those deficiencies and achieve the goals set; The employee must have had the benefit of a reasonable period of time to adjust; and The employee must have been advised of the risk of dismissal without improvement on his/her part. Those criteria were established by the Québec Court of Appeal in 2015 in the case Costco Wholesale Canada Ltd. c. Laplante1 and, until October 4, 2017, were seen as the standard requirements in this matter. However, the Commission scolaire Kativik c. Ménard2 decision from the Superior Court has disrupted more than twelve years of consistent case law by imposing an additional requirement on employers: an employer may now be required to make reasonable efforts to reassign the employee to another position within the employee's competence before terminating him or her on grounds of incompetence.

The Development of the Case Law Test

The criteria applying to the administrative dismissal for incompetence were first set forth in 1982 in the arbitral award in Edith Cavell Private Hospital v. Hospital Employees' Union, Local 1803 rendered in British Columbia. In that case, a Vancouver hospital wanted to dismiss its chief cook, blaming her for the generally disorganized condition of her kitchen, which was impacting the quality of the food served to the patients. Establishing the six-point test that we now know, the arbitration board held that it was representative of a case of "poor," but "non-culpable," job performance. The requirements it set down, better known as the "Edith Cavell test," were subsequently adopted across Canada and were even confirmed by the Supreme Court in 2004.4

However, when the Québec Court of Appeal adopted the test in the Costco case in 2005, it omitted the section dealing with the employer's obligation to make reasonable efforts to find alternate employment within the employee's competence. No reason was provided to justify the omission. The result was that the obligation to try to reassign an incompetent employee to another job was never applied by Québec courts until that criterion was brought back for consideration in the Kativik case...