Versatility: A Legitimate Factor to Consider in Terminations in Quebec

At a time when many businesses in Quebec are reorganizing to adapt to the current market, sometimes resulting in downsizing, it is crucial for employers to know the factors to consider when choosing which employees to terminate. Many mistakenly believe that seniority is the only factor to consider. A recent decision issued by the Administrative Labor Tribunal (“Tribunal”) in Quebec sheds light on the applicable factors, confirming that an employer can decide who to terminate based on the versatility of employees.

Background

The employer in question operates a printing business that serves a diverse commercial clientele. The business has eight divisions, one of which is dedicated to shipping and receiving. In 2014, the complainant was hired as a driver and was responsible for deliveries, among other things.

In March 2020, during the COVID-19 pandemic, the employer temporarily laid off 68 employees, including the complainant. On Sept. 23, 2020, the complainant was informed that his employment was terminated. That same day, he filed a complaint contesting his dismissal.

The employer alleged that the complainant had not been dismissed, but rather that his employment was terminated for economic and organizational reasons, based on an objective factor of versatility. The complainant argued that he had been constructively dismissed, claiming that the factor raised was applied in a biased manner toward him, given his difficult relationship with his manager.

The Tribunal’s Decision

In its review of the complaint, the Tribunal began by pointing out that, unlike a dismissal, a termination takes place for reasons that are not attributable to the employee. The Tribunal then set out the considerations to review in such case, namely:

• The onus is on the employer to prove that it was truly a termination.
• The employer must demonstrate the existence of economic or organizational reasons for the termination.
• The employer must also demonstrate that the employee’s termination is actually the result of these reasons, and that they are not merely a pretext.
• The Tribunal may review the selection criteria used by the employer when it decided to terminate the employee.
• Although the Tribunal cannot interfere in the management of the business, it will nonetheless ensure that the employer applied objective and impartial selection criteria.
• If the employer succeeds in proving the termination was justified, then it will be up to the employee to prove that the criteria used were biased, illegal or discriminatory.

The Tribunal first concluded that the employer had met its obligation to demonstrate the existence of economic or organizational reasons and that the complainant’s termination was a genuine result of these reasons.

The COVID-19 pandemic had indeed significantly affected the employer’s business. Many of its customers had ceased operations, and others modified their operations, such that the demand for delivery was reduced and the employer had to adapt. The employer also showed that its sales had plummeted during the pandemic.

Because its production operations can be broken down into a multitude of different operations, the employer decided that the employees to retain would be selected based on their versatility: the most versatile employees who could be assigned to different operations. The evidence also showed that the employees whose employment relationship was maintained were effectively versatile, and they had indeed been assigned various tasks. In fact, the employer had decided to assign delivery duties to an existing clerk, in addition to other shipping-related tasks, as the reduced delivery activities did not justify maintaining a full-time driver position.

The Tribunal therefore confirmed the legitimacy of this versatility factor and concluded that the employer had applied an objective and impartial selection process. It agreed that an employer may very well decide to abolish a position and assign duties differently.

The Tribunal also found that in a nonunionized environment, in the absence of an internal policy or past practice to this effect, an employer is not required to terminate employees on the basis of seniority. The Tribunal has no jurisdiction to determine which factor an employer should prioritize.

It thus dismissed the complaint and ruled that the termination was proper.

Key Takeaways

This decision serves as a reminder of the procedure to follow when one or more terminations are necessary. When downsizing is at play, an employer must determine carefully which factor will come into play in the selection process in order to ensure that the decision is objective and impartial. As the Tribunal has indicated, employee versatility may be one of these factors.

Florence Longval is an attorney with Fasken in Montreal. © 2024 Fasken. All rights reserved. Reposted with permission of Lexology.