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In Vavilov, the Supreme Court of Canada revised the applicable legal framework for the determination and application of the standard of judicial review of administrative decisions. Changes were made to the analytical framework for determining the applicable standard of review and clarification was provided as to how the standard of reasonableness should be applied. The objective was a more easily identifiable standard and diminished debate on the standard of review applicable to a given administrative matter. On December 19 and 20, 2019, the Supreme Court of Canada published three administrative judicial review decisions in the cases of Vavilov1, Bell Canada2 and Canada Post Corporation3. In the first case, which dealt with espionage, the majority set out a new approach to the judicial review of administrative decisions, with particular regard to the application of the reasonableness standard. The other two decisions similarly illustrate the application of these new principles. Determining the appropriate standard of review Presumption of reasonableness The new analytical framework includes a presumption that reasonableness is the applicable standard in all cases. Going forward, whenever a court reviews the merits of an administrative decision, it should begin with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. As a result, it is not necessary for courts to engage in a contextual analysis as there are no longer categories of questions for which the standard of review is not identified at the outset. Categories of questions subject to the correctness standard The categories of questions to which the standard of correctness applies remain essentially the same: Constitutional questions; Questions regarding the respective jurisdictional boundaries of the specialized tribunals; Questions of law of central importance to the legal system as a whole; more specifically, it is no longer necessary for the question submitted to be outside the area of expertise of the decision-maker; rather, it is sufficient that it is of central importance to the legal system as a whole. Category of jurisdictional questions “Jurisdictional questions”or “true questions of jurisdiction” are no longer questions for which the correctness standard must be applied. Although this is not a major change in itself, the Supreme Court has often stated that this type of question is exceptional. Now that the fate of these questions has been clarified, the standard of reasonableness applies. Cases where the law provides for a statutory appeal mechanism In cases where the law provides for an appeal of an administrative decision to a court of law4, counsel must now defer to the appellate standards of review, keeping in mind the nature of the question at hand (question of law, question of fact or question of mixed fact and law) as opposed to the standards of judicial review. Cases where the law specifies the applicable standard of review The presumption of reasonableness review can be rebutted where a legislature expressly outlines the standard of review applicable to a given administrative decision. In such cases, the standard determined by the legislature applies. Important Take Aways The Vavilov judgment marks a major shift in the state of the law of judicial review. For this reason, prior case law should be treated with caution. The situations in which the presumption of reasonableness review can be rebutted are limited to the five listed above: the three categories of questions where the application of the correctness standard is required, cases of appeal provided for by law, and cases in which the legislature has expressly specified the applicable standard. Nevertheless, the Supreme Court appears to have opened the door to subsequent recognition of new exceptions, albeit on an exceptional basis and in accordance with the analytical framework and principles set out in the decision. Applying the reasonableness standard – Moving forward In addition to revising the analytical framework for determining the applicable standard of review, the majority provides a series of clarifications and indications on how the standard of reasonableness should be applied, and refers to a “more robust form of reasonableness review.” It is important to follow future judgments of the Supreme Court (in addition to other lower courts) in order to accurately measure the impact of this new framework for applying the reasonableness standard. Our colleagues specialized in administrative law, labour law and litigation remain at your disposal for any questions that may arise.   Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Bell Canada v. Canada (Attorney General), 2019 SCC 66. Canada Post Corporation v. Canadian Union of Postal Workers For example, the appeal of certain decisions of the Administrative Tribunal of Québec to the Court of Québec.

The latest amendments to the Labour Standards Act (“LSA”) provide that, in certain specific circumstances, the employers must pay the first two days of absence of their employees instead of granting them a leave without pay. In some instances, employees claimed two additional days of paid leave from their employers even if they were already offering such leave before the amendments came into force. Two recent decisions confirmed that the government’s intention was to grant two days of paid leave to employees who did not benefit from a paid leave and not to give two additional days to employees who already had such benefits1. Amendments to the Labour Standards Act Since January 1, 2019, employees may take leave without pay for the following reasons: Family reasons: absences related to the care, health or education of their child or their spouse’s child, the state of health of their spouse or a close relative; Health reasons: absence owing to sickness, an organ or tissue donation, an accident, domestic violence, sexual violence or a crime. The duration of such authorized absence without pay depends on the reason for the absence. However, according to the latest amendments to the LSA, the first two days of absence per year taken for such reasons are now paid to employees who have three months of continuous service. The LSA stipulates that employees must notify their employer of their absence and the reason for it as soon as possible and, at the employer’s request, provide documentation attesting to this reason. You can refer to the 6 main amendments to the Act respecting labour standards in our guide for employers. Extra paid leave? Many employers, with or without unionized employees, already offer their employees various types of leave in addition to annual vacations: personal leave, flexible leave, sick leave, family leave, special leave, etc. The working conditions of employees were analyzed in two recent arbitration awards and additional paid leave on the basis of the new provisions of the LSA was denied to them. In these cases, the employers involved already offered flexible leave to their employees, which could be used at the employees’ discretion, and in particular for absences authorized by the Labour Standards Act (“LSA”) for the aforementioned family and health reasons. The arbitrators thus refused to grant these employees two additional paid days of leave for family or health reasons, given that the flexible leave days they already benefited from were equivalent to those the LSA provides for. The fact is that these employers already paid for the first two days of absence as soon as employees had three months of continuous service, even though the requirements set out in their collective agreements were stricter in this regard. It was also demonstrated that these employers were not strictly applying the provisions set out in their collective agreements in respect of required absence notices and were thus complying with the Labour Standards Act (“LSA”), which only requires that employees indicate that they will be absent as soon as possible. As long as the working conditions applied comply with the minimum provided for in the LSA, employers are not required to add to them. In conclusion: Before granting additional paid leave to comply with the latest amendments to the Labour Standards Act (“LSA”), managers should check whether, in practice, the paid leave they already offer to employees meets the LSA’s requirements. Our Labour and Employment Law team is available to provide you with advices and solutions related to the new labour standards.   Syndicat des travailleurs spécialisés de Sintra (CSD) et Sintra inc. (Région Estrie), 2019 QCTA 502 and Union des employés et employées de services, section locale 800 et CANMEC Industriel inc., 2019 QCTA 411

The labour shortage that affects Quebec as a whole as well as many other provinces has been a well-known issue for several years. Almost every week, we hear about companies that are forced to close their doors or limit their activities due to a lack of staff in positions of all nature. In order to work in Canada, foreign employees must first obtain the necessary authorizations. Employers planning to hire a foreign worker must ensure that an assessment of the candidate's profile is conducted to determine if the candidate is eligible for an immigration program. If so, it will be important to determine which program is most effective and appropriate. To guide you through this process, here are the answers to certain frequently asked questions. True or False: An employer must obtain a Labour Market Impact Assessment (LMIA) before a foreign worker can apply for a Canadian work permit False. Although a Labour Market Impact Assessment (LMIA) is normally required to obtain a work permit, an LMIA exemption may apply in some cases. Remember: a positive Labour Market Impact Assessment (LMIA) confirms the need to hire a foreign worker to perform a particular job and that no Canadian worker is available to fill this position. If the LMIA application is approved, the foreign applicant may subsequently apply for a work permit. There are however Labour Market Impact Assessment (LMIA) exemptions, of which the following are frequently used: Work permits issued under an international agreement, such as North American Free Trade Agreement (NAFTA) or Comprehensive Economic and Trade Agreement (CETA); Intra-company transferees; Youth exchange programs; Spouses or common-law partners of skilled workers or students; Work permits issued to certain holders of a Quebec Selection Certificate (“Certificat de selection du Québec – CSQ”) who reside in Québec. For a complete list of exemptions, click here. Before starting the complex process of obtaining an LMIA, we strongly suggest that you confirm that no exemption applies in that foreign worker’s case. True or false: Filing an application for permanent residence grants temporary Canadian residence status to the applicant False. Once a temporary resident has obtained a permit to remain in Canada, whether to visit, study or work, they must ensure that they maintain valid temporary resident status. To do so, the applicant must submit an application for extension or modification of their status before the expiry of their immigration documents. Applying for permanent residence does not have the direct effect of extending temporary residence status in Canada. In Quebec, temporary residents wishing to apply for permanent resident status must first obtain a CSQ, issued by the Ministère de l'Immigration, de la Francisation et de l'Intégration (MIFI). Once they obtain a CSQ, temporary residents can apply for permanent residence. Note: Holding a CSQ has no direct impact on the applicant's temporary resident status. They may be required to extend their temporary status in Canada if their permanent residence is not finalized before the expiry of their temporary status. In all cases, temporary residents are therefore required to extend their temporary status in Canada until they become permanent residents, if that is their objective. Your strategies for future recruitment Whether or not the staffing process for a vacant position has proven difficult, HR managers may find it beneficial to consider recruiting foreign candidates. A key factor not to be overlooked: verify whether an LMIA exemption applies. Foreign candidates may be responsible for obtaining their work permit and maintaining valid status in Canada, but HR managers can maximize candidates’ efforts if they are familiar with existing immigration programs. The professionals of our Business Immigration team are available to provide you with all necessary information and assist you in obtaining the necessary documents and permits.-->

Except in cases of “serious misconduct,” managing a manager whose performance is unsatisfactory or whose conduct is inappropriate can be delicate. Because of workplace usage and practices in Quebec, disciplinary management of managers differs from that applied to other employees of the company. Progressive disciplinary measures do not apply to managers, who are rarely, if ever, suspended. HR Manager : Guidelines In a situation involving an executive, an HR manager will have to assess whether or not there is a “serious reason” for dismissal in light of the duties assigned to the executive and his or her responsibilities with respect to alleged actions or situation. For example, an executive who does not take into account the requests of the Board of Directors or his or her supervisor would be guilty of insubordination, which is a serious reason for dismissal, as is the inability to put into place an effective team. Given that executives have a high degree of discretion in how they carry out their duties and responsibilities, it is up to them to find ways to meet the company’s expectations and objectives, unless these are unrealistic or unreasonable in the circumstances. Nevertheless, executives must be notified of any dissatisfaction on the part of their employer when their conduct is inappropriate or does not meet stated expectations and objectives. It will then be up to them to make the necessary adjustments. The courts recognize these special rules for executives. The employer’s power to sanction Section 2094 of the Civil Code of Québec (C.C.Q.) provides that an employer may unilaterally resiliate an employee’s employment contract without notice for a “serious reason.” The courts consider that a serious reason is synonymous with dismissal for “good and sufficient cause,” as defined in jurisprudence or in section 124 of the Act respecting labour standards. Taking into account the specific context of executives is necessary. They have considerable latitude in the performance of their duties, they exercise control over many company employees, their responsibilities may influence the future of the company, and they generally have better working conditions. As a result, employers may be more demanding of executives, who [translation] “should not be treated as subordinate employees in disciplinary matters1.” Thus, the courts have recognized the following principles: Executives cannot “benefit” from so-called progressive discipline like other company employees, as a suspension would be illogical given the nature of their position. Disciplinary measures are intended to help employees understand the seriousness of a situation in order to be able to remedy it. This cannot reasonably be achieved because a suspended manager would suffer a loss of credibility with the teams that he or she supervises2. An employer must inform an executive of any dissatisfaction in terms of conduct or performance. “When the executive in question knows the reasons for the dissatisfaction, it is up to him or her to review his or her ways of doing things and meet senior management’s expectations. Senior management is not required to explain what needs to be changed, even more so when the executive has many years of experience.”3 A “serious reason” refers to an employee’s violation of one or more essential conditions of his or her employment contract, or improper conduct on his or her part. In Sirois c. O'Neil, the Court of Appeal considered that the dismissal of Microcell’s President and Chief Executive Officer was justified because, by his conduct, he had alienated the majority of the senior managers that he was responsible for. The Court considered that he had failed to fulfil the obligations inherent to the task entrusted to him, which involved direction, management and organization: [Translation] “He had been given a command position. It was his obligation to form a united, motivated and efficient team.  That was his main role.  He failed in his task. To illustrate the situation, the locomotive was unable to pull the cars4.” In order to determine whether the employer’s reasons for dismissal are “serious,” the various factors are assessed according to the circumstances, including the importance of the executive’s position, the nature of his or her employment and the seriousness of the complaints.  In Marc Van Den Bulcke c. Far-WicSystèmesLtée et GroupeSécuritéC.M. inc. the Superior Court held that: [Translation] [61] “Depending on the circumstances, negligence in the performance of duties, lack of self-discipline and performance below that agreed upon with the employer constitute serious reasons for dismissal without notice or compensation in lieu of notice5.” The Tribunal administratif du travail essentially applies the same principles as the courts. As an illustration, the Commission des relations du travail pointed out that it is up to an executive to know what conduct is incompatible with his or her obligations under the employment contract in Mommaerts c. Élopak Canada Inc.6: [Translation] [122] “(...) Moreover, when the latter is given considerable responsibilities, it becomes clear that he or she cannot be treated in the same way as an employee.  Indeed, the greater a person’s responsibilities in a company, the less need there is to warn them of the consequences of the actions that they take or fail to take. This is implicit to the function. [Translation] [123] “How can we believe that a suspended executive would have the same credibility with employees, fellow executives, suppliers and customers? The answer is obvious and favours a different application of the principle of gradation of sanctions.” Conclusion Although executives have privileges over other employees in an organization due to their status, this status can quickly render them vulnerable if they fail to live up to their responsibilities.   Valcourt c. Maison l'Intervalle, D.T.E. 95T-322 (S.C.), page 12 Yersh c. CRT et FCA Canada inc. (Chrysler), 2019 QCSC 740, para. 111-113 Bélanger c. Opéra de Québec, D.T.E. 98T-197 (S.C.), page 23. See also Laramée c. Poly-Actions Inc., D.T.E. 90T-923 (S.C.) and Houle et Fédération de l’U.P.A. de Sherbrooke, D.T.E. 84T-303 (A.T.) J.E.99-1343 (C.A.), page 29 2010 QCSC 6654, para. 61 2011 QCCRT 0375, para.122 and 123

On October 3, the Court of Appeal of Quebec overturned an arbitral decision in which videotaped surveillance of an employee, suspected of activities incompatible with her alleged disability, would not be admitted into evidence. The majority of the appeal court judges concluded that the employer was justified in following the recommendation of its designated physician, who, for various reasons, strongly questioned the employee’s credibility. What led the Court of Appeal to overturn the arbitration award? Background The employee had been working as an orderly in a seniors’ residence for more than ten years when she took time off work due to an injured left shoulder. About two months after the onset of her disability, the employer summoned her for a medical expert opinion by its designated physician. On the day of the appointment, the physician happened to be in his vehicle when the employee arrived at his office. He decided to observe her in his rearview mirror. He noted that the employee was moving her left arm normally and that she had placed the strap of her purse on her left shoulder without hesitation or discomfort. The physician then formally examined the employee and, based on his objective examination, concluded that she was simulating all of her symptoms. He recommended that the employer carry out surveillance. The physician reminded the employer that the employee had already made false statements about her health during a period of disability a year earlier. The employer therefore had the employee followed for a day during which she drove and shop in public commercial establishments (places where an individual’s expectations of privacy are low). After viewing the videotape, the designated physician said he believed that the employee was simulating her disability. She was dismissed for failing to comply with her obligations of loyalty and honesty, as well as for her lies, exaggerations, and fraud related to her participation in activities incompatible with her alleged health status. This situation was then assessed successively by the Arbitration Tribunal, the Superior Court in a judicial review of that decision, and the Court of Appeal. Court of Appeal decision The Court of Appeal concluded that the employer was justified in relying on the findings and recommendations of its designated physician, which constituted reasonable grounds to conduct the surveillance. The Court of Appeal added that it was entirely legitimate for the employer to take into consideration the employee’s previous false statements: it believed that ignoring them would be inappropriately idealistic. The surveillance satisfied the proportionality test in the search for the truth, since the means were reasonable: one day of surveillance in public places and without traps. The Court of Appeal returned the case to the Arbitration Tribunal to review the validity of the dismissal on the basis of the video evidence. What do you need to know as an HR Manager? Ultimately, an employer may be justified in requesting surveillance when it relies in good faith on the observations and recommendations of its physician, and when the surveillance is carried out sensibly. When there are reasonable grounds to suspect activities incompatible with the employee’s limitations, surveillance can be an effective tool for unmasking fraud. We will keep you informed of any developments in this case, including a possible application for leave to appeal to the Supreme Court of Canada. Our Labour and Employment Law team is available to provide you with timely advice and solutions.

During Major Symposium in Montréal held on June 4, our colleagues Michel Desrosiers and Ariane Villemaire discussed the employees’ duty of loyalty under the Civil Code of Québec. In their presentation, they discussed the case of Xit Télécom Inc. and Madysta Constructions Ltée v. Beaumier et al.1 on the scope of injunction orders that the Superior Court recently issued pursuant to the legal duty of loyalty (article 2088 of the Civil Code of Québec). On June 5, 2019, the Court of Appeal upheld these orders, prohibiting two former employees from doing business with their former employer’s customers and becoming the owners of a business in competition with their former employer. Background Two key employees, a vice-president of engineering and a head of business development (the “Defendants”), prepared for almost 12 months the launch of a business that would compete with their current employer, while they were employed by the latter. While still employed, the Defendants solicited their employer’s customers, suppliers and employees in order to persuade them to join their new business project. They also made disparaging comments to customers and employees about their employer and its CEO. Finally, they attempted to illegally appropriate business opportunities they had learned about during their employment. Once the situation was discovered, the employer quickly dismissed the Defendants and took steps to obtain safeguard and injunction orders against them. The debate On the sole basis of the legal obligation of loyalty (article 2088 C.C.Q.), rather than under restrictive clauses provided for in the employment contract, the Superior Court granted the employer interim injunction and safeguard orders in December 2018 and January 2019. In March 2019, the Superior Court issued interlocutory injunction orders for a maximum period of nine months, prohibiting the Defendants from: Using confidential information; Soliciting customers, subcontractors and employees; Doing business with customers appearing on a list filed under seal; Investing, partnering in or otherwise becoming the owner of a business in competition with that of the employer. The Superior Court, in its reasons, noted that: [TRANSLATION] [26] The Court cannot see how it could, at this time, allow the defendants to conduct business with customers to whom they made disparaging comments about the plaintiffs, without thereby giving them free rein to unfairly compete with their former employer. For the past year, until December 20, 2018, said customers who would “solicit” the services of the defendants have been receiving negative messages about the plaintiffs. Allowing the defendants to supposedly respond to the requests of said customers would amount to allowing them to reap the benefits of their unfair competition. This cannot be allowed. (Our emphasis) The Court of Appeal2 agreed with the arguments raised by Carl Lessard and Ariane Villemaire, members of our Labour and Employment Law group. It dismissed the appeal and concluded that the orders were consistent with the principles already recognized by the Court of Appeal3 : [TRANSLATION] [7] Indeed, although in principle the duty of loyalty provided for in article 2088 CCQ must not be interpreted as preventing an employee from competing with his or her former employer, the fact remains that jurisprudence tends to prohibit conduct such as that alleged against the appellants in this case, including slander tactics, benefiting from privileged relationships with customers, and active solicitation of customers during the period of employment. (Our emphasis) The Court of Appeal also concluded that the Superior Court’s decision was reasonable in setting the duration of the prohibitions at nine months given the particular facts of the case. What it means This decision is of great practical interest because it emphasizes that article 2088 of the C.C.Q. prohibits unfair competition with a former employer. Orders may thus be issued on the basis of this provision to protect the rights of employers when such unfair competition takes place during employment despite the absence of valid restrictive clauses. However, this decision also confirms the general principle that the duty of loyalty does not prohibit legal competition with a former employer in the absence of a non-competition clause. Thus, employers should continue to protect their legitimate interests by including non-competition, non-solicitation and confidentiality clauses in employment contracts when the circumstances so require. Our Labour and Employment Law group is available to assist you in drafting, analyzing and defending the means available to employers to protect their rights and business activities.   2019 QCCS 1446 Beaumier c. XIT Télécom inc. , 2019 QCCA 1000 Citing Concentré scientifiques Bélisle inc. c. Lyrco Nutrition inc., 2007 QCCA 676

The Administrative Labour Tribunal (“ALT”) has ruled on the merits of the Supervac 20001 case, putting an end to the saga dealing with interpreting the part of section 326 of the Act respecting Industrial Accidents and Occupational Diseases (“AIAOD”) that concerns applications for transfer of costs by reason of undue burden. With its decision, the ALT establishes that dismissal, like resignation or retirement, constitutes a risk inherent to an employer’s activities. Consequently, dismissal cannot create an unjust situation and the employer cannot claim to be “unduly burdened” by a dismissal resulting from the exercise of its management rights, even if it has the effect of terminating an authorized and available temporary assignment. Details of the decision In this case, the employer had filed an application for the transfer of costs of benefits for an employment injury under paragraph 2 of section 326 of the AIAOD. It alleged that the resumption of income replacement benefits, after the worker’s temporary assignment ended as a result of his dismissal for insubordination, constituted a situation beyond its control that unduly burdened it. The ALT’s interpretations of the term “unduly” and the notion of “inherent risk” were inspired by the landmark decision in Ministère des Transports2, although it relates to applications for transfer of costs following an industrial accident attributable to a third party. After analysis, the ALT concluded that even if an employer does not control a worker’s actions and cannot foresee them all, dismissing an employee because of behaviour issues is a management decision that does not possess the [translation] “extraordinary, unusual, rare or exceptional” character required by jurisprudence. Dismissal, like resignation or retirement, is part of labour relations and therefore an “inherent risk” to an enterprise. The interruption of the temporary assignment ultimately results from the employer’s decision to dismiss the worker. Although it had serious financial consequences for the employer, the decision to dismiss the worker cannot be considered to be an injustice. The ALT points out that the temporary assignment resulted from the injured worker’s right to rehabilitation. Even though the employer may financially benefit from the temporary assignment, it is not one of its rights. The ALT therefore concluded that the employer was not unduly burdened within the meaning of section 326 of the AIAOD, and its application for transfer of costs was dismissed. What it means In the past, many employers had successfully obtained cost transfers in connection with temporary assignments terminated as a result of dismissal for disciplinary reasons. These decisions were based in particular on the unpredictability of a worker’s behaviour, which is beyond the employer’s control. The ALT’s decision on the merits of the Supervac 2000 case will certainly put an end to the granting of cost transfers based on this argument. This decision will in particular need to be taken into account when dismissing or considering dismissing a worker on temporary assignment. However, it is still possible for an employer to allege other grounds of undue burden, such as intercurrent diseases. Our Labour and Employment Law team is available to provide you with advice and solutions in your analysis of cost sharing files.   2019 QCTAT 2540. 2008 QCCLP 1795.

Does an employer have to make reasonable efforts to reassign an employee to another suitable position before proceeding to dismissal due to poor performance? This issue has been the cause of a great jurisprudential controversy, especially since the Superior Court rendered its decision in Kativik1. This judgment handed down in October 2017, implied that such an obligation could apply to Québec employers in addition to the five criteria established in Costco2 to determine whether a dismissal for poor performance is abusive, arbitrary or unreasonable. Labour market stakeholders have since been waiting for the Court of Appeal’s judgment in this case, which was finally rendered on May 31, 20193. Background on the Kativik case Here are the highlights of this saga4: An administrative technician had agreed on a three-month performance improvement plan with an employer in order to solve performance issues; During this period and faced with the employee’s inability (or difficulty) to meet the plan’s requirements, the employer offered him a receptionist position and gave him three days to accept the offer, even though the position was posted with a deadline for accepting applications that was longer than the amount of time given to the employee; The employee refused the offer, preferring to continue working according to the terms of his improvement plan; Given the employee’s lack of progress, the employer dismissed the employee for administrative reasons, being poor performance. Arbitrator Jean Ménard was seized of the grievance challenging the dismissal. He held that the employer had failed to fulfill its obligation to reassign the employee to less demanding duties, relying in particular on three arbitral awards filed by the labour union attorney applying this principle. He thus allowed the grievance5. The arbitrator pointed out that it was unreasonable for the employer to require a response from the employee within three days when the evidence showed that the employee would have been able to perform the replacement position duties. The employer challenged this decision by way of an application for judicial review. The Superior Court dismissed the application on the grounds that arbitrator Ménard had rendered a reasonable ruling by concluding that the employer had not fulfilled  its obligation to find an acceptable alternative to the complainant’s dismissal. To do so, the Court indicated that although the five criteria used in Costco did not clearly state this sixth criterion, it remained applicable in Québec according to the principles enunciated in Edith Cavell6, a decision from British Columbia that inspired the five criteria developed and established by the Québec courts for dismissals due to poor performance. Decision of the Court of Appeal The judges of the Court of Appeal dismissed the appeal and upheld the arbitral award on the grounds that it possessed all the attributes of reasonableness. However, the judges indicate that : The arbitrator departed from the majority of jurisprudence on dismissal for unsatisfactory performance;7 Another decision-maker could have come to another conclusion;8 This approach is certainly uncommon, but it is not unreasonable.9 That means that although an employer may terminate an employee’s employment for performance reasons without having to reassign him or her to another suitable position, a Tribunal may find that such dismissal is unjustified, depending on the circumstances of the case, in the absence of evidence of the employer’s effort to reassign the employee10. In this regard, establishing the legality of dismissal for unsatisfactory performance essentially comes down to context and will be decided on a case by case basis. The Court also points out that in the presence of a plurality of applicable criteria and jurisprudential controversies, the same factual situation may give rise to different reasonable outcomes, as is the case here. The Court thus concluded that the trial judge was right to dismiss the application for judicial review given that the arbitral award, in which the arbitrator applied this sixth criterion, was a possible and acceptable outcome. Conclusion: A new criterion, yes or no? On the basis of the Court of Appeal’s reasons in this case, an employer may not be required to make reasonable efforts to reassign an employee to another suitable position before proceeding to dismissal for poor performance but depending on the circumstances, may be obliged to do so. A prudent manager should therefore analyze each individual situation in order to determine whether or not the circumstances require a reassignment. It should be noted that in the Kativik case, the employee’s new supervisor had significantly changed his duties, which resulted in performance difficulties and the personal improvement plan. Yet, the employee had not encountered any difficulties in his previous duties. Such special circumstances could thus confer reasonableness upon a conclusion of the arbitrator requiring the employer to attempt a reassignment before dismissal. At the time of publication, the delays to file an application for leave to appeal to the Supreme Court have not expired. We shall follow this matter and keep you informed of any future developments.   Commission scolaire Kativik c. Ménard, 2017 QCCS 4686; on the subject of the jurisprudential controversy, see our article published on the Ordre des CRHA website [French only]. Costco Wholesale Canada Ltd. c. Laplante, 2005 QCCA 788: this landmark decision in Québec outlines the five criteria used by Québec courts to uphold a dismissal for poor performance. They are a) the employee is aware of the company’s policies and what the employer expects of the employee, b) the employee has been notified of any deficiencies, c) the employee had the support needed to remedy the deficiencies and meet his objectives, d) the employee was given a reasonable time period within which to adapt and e) the employee was informed of the risk of dismissal should there be no improvement. Commission scolaire Kativik c. Association des employés du Nord québécois, 2019 QCCA 961. The facts are more fully described in our publication further to the Superior Court decision. Association des employés du Nord québécois et Commission scolaire Kativik, 2015 QCTA 247, para. 126. Re Edith Cavell Private Hospital and Hospital Employees’ Union, Local 180, (1982), 6 L.A.C. (3d) 229 (BC). Kativik, supra note 3, para. 19. Id., para. 18. Id. Id. para. 17.

At a time when it is becoming harder to distinguish true information from fake news and when a photo posted on social media can travel the world, companies are eager to do all they can to protect their image. What about when it’s your own employees who tarnish your company's reputation? Defamatory acts are increasingly common in the workplace and should not be taken lightly. These manifest in different forms and can permanently damage the employer's reputation. What is defamation? The courts agree that defamation consists in the communication of spoken or written remarks that cause someone to lose in estimation or consideration, or that prompt unfavourable or unpleasant feelings toward him or her. One might think that communication is limited to speech or writing. Nowadays, however, we recognize that defamation can be committed in many other ways, including through images or actions1. The anonymity of the web and the ease with which information can be shared have greatly altered the potential reach of a communication, which, while seemingly benign, can result in many legal proceedings. The courts have called the web the most powerful communication tool on Earth, capable of making a person famous in a few minutes or destroying their reputation with a single click!2 The three situations likely to incur the author's liability According to the Supreme Court3, there are three main situations that can constitute defamation. The first occurs when a person makes unpleasant comments about a third party that he or she knows to be false. Such statements can only be made out of malice, with the intention of harming others. The second situation occurs when a person says unpleasant things about another when he or she ought to have known they are false. A reasonable person generally refrains from sharing negative information about others if he or she has reason to doubt its veracity. Finally, the third, often forgotten, situation is that of a slanderer who makes unfavourable but true comments about another without any valid reason for doing so. In the workplace, these three situations can occur between two employees, between a supervisor and his or her employee, or between an employee and the company he or she works for. What about freedom of expression? Freedom of expression, which is frequently invoked to defend statements made against a third party, is not without limits, especially in an employment context. The concept of defamation makes it necessary to reconcile the right to protection of reputation with the right to freedom of expression, since the former generally takes away from the latter. The courts will seek a balance between these two fundamental rights, which are both protected by Quebec’s Charter of Human Rights and Freedoms. Thus, while in some cases the courts recognize the right of employees to express themselves online about their employer, they will ensure that the comments are not factual statements that prove to be false, unfounded, distorted or exaggerated4. In addition, employees may have various contractual obligations, such as any non-disclosure agreement or confidentiality agreement they may have signed, or they may be required to comply with various employer policies, for example on the use of social media or respect in the workplace. By entering into such agreements, the employee agrees to limit his or her right to freedom of expression5. Beyond any contractual obligations to which an employee has subscribed, the Civil Code of Québec obliges employees to act faithfully to their employer and not use any confidential information they obtain in the course of their work. These obligations apply not only in the context of employment, but also at all times where the information concerns the reputation and privacy of others. Moreover, these obligations continue for a reasonable time after the contract terminates. The courts recognize that the obligation to act faithfully includes protecting the employer's reputation. In case of defamation, what recourse does the employer have? Sanction the offending employee Whether the victim is an employee or a manager, the employer should not stand idly by if someone claims to be the victim of defamation. In addition to damaging the company's work environment and productivity, the victim may also be tempted to file a psychological harassment complaint, which is why it is important to act quickly and conduct a serious inquiry. The same reasoning applies when an employee makes defamatory statements about the company. If the inquiry determines that defamation has occurred, the employer may sanction the offending employee. The applicable sanctions are determined on a case-by-case basis, but may include dismissal. On this subject, we invite you to consult our guide on imposing disciplinary measures, published on the website. Sue the offending employee If the contested comments constitute a fault and cause damage, the employer could claim compensation from their author, even if he or she is a former employee, insofar as the employer can demonstrate prejudice and a causal link with the alleged comments. For example, see our bulletin on the Digital Shape Technologies decision, under which a former employee was ordered to pay $11,000 to the employer in moral and punitive damages because of the prejudice caused by two negative comments posted anonymously online. Six tips to prevent defamation Implement a policy on non-denigration and social media use and regularly remind all employees of its existence, while making the necessary links with the policies on the prevention and handling of harassment complaints, as well as policies on the promotion of civility in the workplace. Provide training to employees and educate them on the proper and ethical use of social media and the need to respect their obligation to act faithfully not only at work, but also outside it. Revise policies and working conditions (contracts and manuals) to take into account technological innovations and users’ new favourite networks. Keep an eye on traditional and social media. In this respect, it has already been decided that an employer who monitors the media through an automated alert system that informs it when articles and other written material are published about it and that, in this way, finds comments made about it by employees, is not conducting illegal surveillance6. Quickly document any defamatory situation. This is particularly important when the comments are made on the internet. The employer should keep a copy of any video, comment, blog or webpage containing defamatory comments about the employer, as they may be modified by the author or deleted altogether. These files must not be altered or modified. When it comes to an email conversation, it will be necessary to try to obtain the entire conversation and not just the defamatory passage that could be misinterpreted out of context. When the statements have been made verbally, the employer should try to collect evidence and have it recorded in writing during the inquiry. Once the employer realizes that, as a result of its inquiry, it is reasonably able to conclude that a person is damaging the employer’s reputation, it must give notice to the person to retract the comments and block any message reiterating such damage to the employer’s reputation. The employer should also check to what extent the sites and technological tools allow it to intervene in order to block or rectify the alleged remarks directly. Remember that the employer also has an obligation not to commit defamatory acts against its employees. An employer who speaks out in public and denounces the actions of its employees is equally liable. This was the case in particular in the Kativik case7, where the employer had made statements in the Journal de Montréal concerning the unprofessional conduct of one of its employees, who had publicly reported an internal dispute. The comments were deemed to be unfounded and read by more than one million readers, and the grievance arbitrator awarded the employee $15,000 in compensation. Similarly, a prudent employer will not make defamatory comments or seek to harm a former employee when contacted by another employer for references. The employer must provide truthful information, with the prior authorization of the person concerned. Prudent managers will be able to foster a respectful work environment both inside and outside the workplace through these preventive measures and, at the same time, reduce both potential and crystallized disputes by explicitly defining the behaviours expected of everyone and by acting promptly in the event of apparent breaches.   Bou Malhab v. Diffusion Métromédia CMR inc. 2011 SCC 9, par. 15. Laforest v. Collins, 2012 QCCS 3078, para. 117. Prud'homme v. Prud'homme, 2002 SCC 85, par. 6. Digital Shape Technologies Inc. v. Walker, 2018 QCCS 4374, par. 56 and 57. Ibid, para. 29. Syndicat des employées et employés professionnels-les et de bureau, section locale 574 (SEPB-CTC-FTQ) and Librairie Renaud-Bray inc. (Julien Beauregard, griefs patronaux et syndicaux), 2017 QCTA 26. Association des employés du Nord québécois and Commission scolaire Kativik,AZ-50966087.

As an employer, you may occasionally be required to impose disciplinary measures on problem employees. Handling such difficult situations requires an objective, planned approach so as to put an end to the misconduct and minimize the risk of litigation. To assist you in implementing your intervention and imposing disciplinary measures, here is a brief review of the three essential steps: (1) conducting an investigation, (2) selecting an appropriate disciplinary measure, and (3) imposing the disciplinary measure. It is important to note that a disciplinary measure should be both a penalty and corrective action. Non-disciplinary (administrative) action is used when an employee commits an unintentional violation that cannot be rectified because of the person’s inability to perform the required work (e.g., due to lack of knowledge or skills). On the contrary, disciplinary action is warranted when an employee deliberately engages in misconduct. In this case, the measure is aimed at penalizing the employee and correcting the behaviour. Step one: conducting a thorough, objective disciplinary investigation Steps required for a disciplinary investigation When you find out that an employee may have committed a violation that warrants a disciplinary investigation, it is essential that you promptly gather the facts, rather than acting impulsively. Steps to follow: Determine whether it is necessary to suspend the employee with or without pay during the investigation; Determine who may have witnessed the violation; Set up meetings with the witnesses: Prepare a list of open-ended questions that do not suggest a version of the facts or a judgment of the situation (this list may be improved during investigation meetings by adding sub-questions aimed at obtaining more detail, while ensuring that the same questions are asked and the same aspects confirmed with all those interviewed); Meet with witnesses individually in a private area to ensure the confidentiality of the process; Set aside sufficient time to cover all aspects of the situation being investigated; Plan for replacements for employees called to meetings, if necessary; and Ensure that a second person is present to act as a witness (to take notes during meetings and to attest to what was discussed). Meet with potential witnesses: Take notes that are as complete as possible during meetings; Ensure that you fully understand the answers and information provided by the witnesses; Ask questions to obtain clarification when in doubt to avoid misunderstanding the version of the facts being reported; Do not be afraid of moments of silence, since they sometimes have the effect of making witnesses speak more, giving them the opportunity to elaborate on their answers; and Ideally, obtain a written statement, dated and signed by the witness, that summarizes the information provided during the meeting, or confirm the contents of the oral statement with the witness by having the witness read the notes taken during the meeting. Meet with the employee suspected of having committed the violation last, to obtain his or her version of the facts. Apply the same rules to that meeting as those listed above for setting up meetings and meeting with other witnesses. Act quickly and carefully It is important to act diligently when initiating and conducting the investigation, as doing so will allow you to: Collect evidence while it is still fresh in the minds of those concerned; Rectify the problematic situation quickly; and Avoid creating unnecessary stress for employees, particularly if the investigation reveals that no violation can be proven. Notwithstanding the above, take the time to gather all necessary information or carry out further investigation before deciding whether to impose a disciplinary measure. Respect the collective agreement or the organization’s working conditions If a collective agreement applies to your employees, you must ensure that you comply with the disciplinary investigation requirements set out in the agreement, including the obligation to inform the union or allow a union representative to be present at meetings, time limits for imposing a disciplinary measure, conditions for disclosing the reasons why a measure is being imposed, etc. If there is no collective agreement, it is prudent to follow the rules the employer has set for itself in internal policies or other working condition documents. Step two: selecting the disciplinary measure  If the investigation reveals that the employee has indeed committed a violation that warrants disciplinary action, you must now select a disciplinary measure. Penalty proportional to the misconduct When selecting a measure, the first principle is to ensure the penalty is proportional to the misconduct. The more serious the misconduct, the more severe the penalty should be. Penalty scale (subject to exceptions) Barring exceptional circumstances and subject to your organization’s collective agreement and policies, you should use a penalty scale, which normally includes the following: Verbal notice; Note: Although this is a verbal notice, a detailed description of the notice must be kept in the employee’s file to ensure that the situation is monitored. Written notice; Suspension; Depending on the circumstances, it is generally preferable to impose a short suspension, followed by a longer one, before dismissing an employee. Dismissal. There are exceptions to implementing such a penalty scale, including, in particular, the following: Serious misconduct having the effect of permanently breaking the relationship of trust which must exist between employee and employer; and Management employees (although such a scale is difficult to apply to management employees who have committed violations, nevertheless, with few exceptions, they should have been previously notified of the allegation and been given the opportunity to make amends). Things to consider when selecting a penalty In addition to using a penalty scale, you must ensure that you comply with the collective agreement and your business’s policies, which may include provisions for disciplinary action in the event of violations of the requirements specified in such policies. You must also verify whether the proposed measure is consistent with disciplinary measures applied in previous similar cases, so as to demonstrate that discipline is carried out consistently and fairly throughout the business, while respecting the specific facts of each case. Finally, you must consider the aggravating and mitigating factors that are relevant to your employee’s situation. Here is a non-exhaustive list of examples: Aggravating factors Mitigating factors Seniority (depending on violation) Seniority (depending on violation) Disciplinary record riddled with violations Clean disciplinary record Significant consequences of the violation for the business, customers, colleagues, etc. Violation with no significant consequences for the business, customers, colleagues, etc. Status or importance of the employee’s duties to the business Employee’s tasks are generally supervised or not critical to corporate affairs Premeditated violation Violation that was not premeditated Absence of remorse or apology Admission of guilt, show of remorse and apology Lack of collaboration or transparency during the investigation Collaboration and transparency during the investigation Employee autonomous when carrying out duties, generally without supervision Lax supervision or requirements on the part of the employer in the past in relation to the violation Step three: imposing the disciplinary measure  Once you have determined the disciplinary measure that best fits the circumstances, you must call a meeting to inform the employee of the measure. As with investigation-related meetings, you must meet with the employee in private and ensure that a witness is present with you to take notes during the meeting. Notes and disciplinary measures must be entered in the employee’s file. During the meeting, a disciplinary letter must be given to the employee, and the contents of the letter must be repeated to confirm the measure being imposed and to clearly and succinctly explain the violation(s) the employee is accused of. If the measure is not dismissal, you should take the opportunity to remind the employee of your expectations, which should also be explicitly stated in the disciplinary measure letter. In addition, the letter should state that any subsequent misconduct may result in a more severe disciplinary measure, which could even include dismissal. We remind you that you must document and carry out the measure in accordance with the requirements of the collective agreement and business policies, if applicable. Conclusion This quick reference guide should help you plan the imposition of a disciplinary measure to ensure that you: Carry out a proper investigation; Carefully select the measure to be imposed; and Impose a disciplinary measure in an appropriate manner, ensuring that you monitor your employee’s disciplinary file. However, measures must be imposed on a case-by-case basis. Our Labour and Employment Law team is available to advise and assist you for each of the three steps.

On April 10, 2019, came into force several long-awaited amendments to the Pay Equity Act, which are mainly intended to improve the pay equity audit process. These amendments follow last year’s Supreme Court of Canada ("SCC") judgment1. We discussed these judgments in a previous bulletin. It should be recalled that the SCC, in its decision of May 10, 2018, essentially declared certain provisions of the Pay Equity Act unconstitutional, stating that: Compensation adjustment, in the context of a pay equity audit conducted every five years, must be retroactive; The information to be included in the posting of the audit results was insufficient to allow employees to properly understand the process followed by the employer during the audit and did not include the date on which inequity manifested itself. In fact, the amendments to the Pay Equity Act go much further than most of the adjustments required by the Supreme Court of Canada, despite public consultations and numerous comments from employer groups in this regard. The following is a brief summary of the most significant amendments to the Pay Equity Act that your organization should review in order to quickly ascertain their repercussions: 1. Pay equity audit: Events leading to adjustments Compensation adjustments, following the pay equity audit process, will now have to be paid retroactively, back to the date of the event leading to the adjustment. The Pay Equity Act does not provide any clarification as to the notion of the event leading to the adjustment. In practice, the employer will therefore have to examine the events that have affected pay equity on a case-by-case basis. One can imagine that this amendment will not be easy to apply and that in the case of several events and adjustments, retroactivity will have to be applied on different dates. The retroactive payment required as a result of the pay equity audit will be payable in a lump sum. However, in some cases, for persons still employed by the employer, this lump sum may be spread over several payments, after consultation with the pay equity audit committee or the certified union representing employees, as the case may be. In addition, the employer must indicate the date of the event on the posting of the audit results. With respect to the date on which an employer must perform the pay equity audit, the Pay Equity Act now provides that the five (5) year time limit is established from the first posting and not the second posting, whether for an initial pay equity exercise (through a program or not) or a previous audit. 2. Pay equity audit: Participation of employees and certified associations Another major change is the introduction of an employee participation process in cases where the initial exercise was conducted by a committee or where there is at least one certified union representing employees. One of the consequences of this participation process is that the employer is obliged to provide information about the audit work, including written documents. The Pay Equity Act provides that persons with access to this information are required to maintain its confidentiality. The employer must also institute consultation measures so that the certified union or employees can ask questions and submit comments. The employer also has an obligation to allow employees to meet at the workplace to determine who will be designated in the participation process. In any event, employees are deemed to be at work for the purposes of this process. Finally, the employer will have to include questions or comments submitted as part of the participation process in the posting and show how they were considered in the audit. 3. Retention of documents Documents used to achieve pay equity or to perform the pay equity audit must now be kept for a period of six (6) years instead of five (5). In the case of a complaint or investigation, the employer is required to keep these documents until a final decision is made or until the investigation is closed. 4. End of posting notices Good news: In order to somewhat streamline the posting process, it will no longer be necessary for employers to issue a notice stating that a pay equity posting is in progress. 5. Creation of a complaint form The Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST") has created a complaint form that employees will have to use to file a complaint. This complaint must briefly state the reasons for which it is being filed. 6. Grouping complaints and conciliation The Pay Equity Act now provides the possibility for the CNESST to group complaints if they have the same juridical basis, are based on the same facts or raise the same points of law, or if circumstances permit. In addition, when more than one certified union represents employees in the same job class and one of these unions files a complaint, the process requires the appointment of a conciliator. In the case of a group of complaints or a complaint filed by a certified union in an enterprise, an employee who has also filed a complaint must receive a copy of the agreement that has been reached, and this employee may refuse to be bound by this agreement. In the event that no agreement has been reached, the Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST") must then determine the measures that must be taken to ensure that pay equity is achieved or maintained. Transitional measures Second postings related to a pay equity audit made prior to April 10, 2019, continue to be governed by the previous provisions of the Pay Equity Act. However, in the case of a first posting made before April 10, 2019, the second posting must include the date of each event leading to an adjustment, in accordance with the changes made: A period of 90 days (until July 9, 2019) is allowed to make this second posting. Note: Adjustments resulting from this second posting will be due as of the date of the event that generated these adjustments and will therefore be retroactive according to the ministère du Travail, de l’Emploi et de la Solidarité sociale. An employer that must issue a posting related to the pay equity audit by July 9, 2019, is not required to implement a participation process under the new provisions of the Pay Equity Act, even if a pay equity committee had been formed when pay equity was achieved or if a certified union represents all or some of the employees concerned. If an employer was authorized by the CNESST before February 12, 2019, to conduct its pay equity audit after April 10, 2019, and, if not for that authorization, the posting of the audit would have been done before April 10, 2019, then the previous provisions of the Pay Equity Act will apply. For pay equity audits to be completed by April 10, 2020, the new reference dates for calculating audit periods will only apply as of the next pay equity audit. What employers should do Right now? The Quebec government had to amend the Pay Equity Act to reflect the SCC's decision. These amendments will give rise to a number of practical difficulties that employers will have to anticipate. Pay equity audit Although the maintenance of pay equity must be audited every five years, we believe that employers will have to institute a mechanism to periodically identify major changes within the company that could lead to pay inequities for predominantly female job classes. It will be necessary to keep a history of these events in order to be able to determine which ones have led to adjustments, if any, when posting the audit results. In any case, a history of the work should be kept, whether or not it was done by a committee, in order to ensure a certain continuity within the enterprise in the event of a change of manager. Since it requires continuous monitoring of the payline to comply with legal requirements, the audit process itself will become less onerous. Employee participation With respect to employers now required to institute an employee participation process, it will also be prudent to have employees who participate in the audit process sign a confidentiality agreement and make them aware of the sensitive nature of the information to which they have access. Posting Employers will have to ensure adequate disclosure of information in the postings, which will enable better understanding of the audit results and potentially minimize the risk of complaints. Training and communication It will be essential to train managers on pay equity in order to ensure a good understanding of the legislation and avoid inconsistencies in the implementation of the audit process. In short, although pay equity is a value that has reached a point of consensus in our society, the fact remains that the law imposes a restrictive and formal framework that will have to be put in place. Our Labour and Employment team can provide you with valuable support in this exercise and we invite you to contact us.   Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17

As an employer, you may occasionally be required to impose disciplinary measures on problem employees. Handling such difficult situations requires an objective, planned approach so as to put an end to the misconduct and minimize the risk of litigation. To assist you in implementing your intervention and imposing disciplinary measures, here is a brief review of the three essential steps: (1) conducting an investigation, (2) selecting an appropriate disciplinary measure, and (3) imposing the disciplinary measure. It is important to note that a disciplinary measure should be both a penalty and corrective action. Non-disciplinary (administrative) action is used when an employee commits an unintentional violation that cannot be rectified because of the person’s inability to perform the required work (e.g., due to lack of knowledge or skills). On the contrary, disciplinary action is warranted when an employee deliberately engages in misconduct. In this case, the measure is aimed at penalizing the employee and correcting the behaviour. Step one: conducting a thorough, objective disciplinary investigation Steps required for a disciplinary investigation When you find out that an employee may have committed a violation that warrants a disciplinary investigation, it is essential that you promptly gather the facts, rather than acting impulsively. Steps to follow: Determine whether it is necessary to suspend the employee with or without pay during the investigation; Determine who may have witnessed the violation; Set up meetings with the witnesses: Prepare a list of open-ended questions that do not suggest a version of the facts or a judgment of the situation (this list may be improved during investigation meetings by adding sub-questions aimed at obtaining more detail, while ensuring that the same questions are asked and the same aspects confirmed with all those interviewed); Meet with witnesses individually in a private area to ensure the confidentiality of the process; Set aside sufficient time to cover all aspects of the situation being investigated; Plan for replacements for employees called to meetings, if necessary; and Ensure that a second person is present to act as a witness (to take notes during meetings and to attest to what was discussed). Meet with potential witnesses: Take notes that are as complete as possible during meetings; Ensure that you fully understand the answers and information provided by the witnesses; Ask questions to obtain clarification when in doubt to avoid misunderstanding the version of the facts being reported; Do not be afraid of moments of silence, since they sometimes have the effect of making witnesses speak more, giving them the opportunity to elaborate on their answers; and Ideally, obtain a written statement, dated and signed by the witness, that summarizes the information provided during the meeting, or confirm the contents of the oral statement with the witness by having the witness read the notes taken during the meeting. Meet with the employee suspected of having committed the violation last, to obtain his or her version of the facts. Apply the same rules to that meeting as those listed above for setting up meetings and meeting with other witnesses. Act quickly and carefully It is important to act diligently when initiating and conducting the investigation, as doing so will allow you to: Collect evidence while it is still fresh in the minds of those concerned; Rectify the problematic situation quickly; and Avoid creating unnecessary stress for employees, particularly if the investigation reveals that no violation can be proven. Notwithstanding the above, take the time to gather all necessary information or carry out further investigation before deciding whether to impose a disciplinary measure. Respect the collective agreement or the organization’s working conditions If a collective agreement applies to your employees, you must ensure that you comply with the disciplinary investigation requirements set out in the agreement, including the obligation to inform the union or allow a union representative to be present at meetings, time limits for imposing a disciplinary measure, conditions for disclosing the reasons why a measure is being imposed, etc. If there is no collective agreement, it is prudent to follow the rules the employer has set for itself in internal policies or other working condition documents. Step two: selecting the disciplinary measure  If the investigation reveals that the employee has indeed committed a violation that warrants disciplinary action, you must now select a disciplinary measure. Penalty proportional to the misconduct When selecting a measure, the first principle is to ensure the penalty is proportional to the misconduct. The more serious the misconduct, the more severe the penalty should be. Penalty scale (subject to exceptions) Barring exceptional circumstances and subject to your organization’s collective agreement and policies, you should use a penalty scale, which normally includes the following: Verbal notice; Note: Although this is a verbal notice, a detailed description of the notice must be kept in the employee’s file to ensure that the situation is monitored. Written notice; Suspension; Depending on the circumstances, it is generally preferable to impose a short suspension, followed by a longer one, before dismissing an employee. Dismissal. There are exceptions to implementing such a penalty scale, including, in particular, the following: Serious misconduct having the effect of permanently breaking the relationship of trust which must exist between employee and employer; and Management employees (although such a scale is difficult to apply to management employees who have committed violations, nevertheless, with few exceptions, they should have been previously notified of the allegation and been given the opportunity to make amends). Things to consider when selecting a penalty In addition to using a penalty scale, you must ensure that you comply with the collective agreement and your business’s policies, which may include provisions for disciplinary action in the event of violations of the requirements specified in such policies. You must also verify whether the proposed measure is consistent with disciplinary measures applied in previous similar cases, so as to demonstrate that discipline is carried out consistently and fairly throughout the business, while respecting the specific facts of each case. Finally, you must consider the aggravating and mitigating factors that are relevant to your employee’s situation. Here is a non-exhaustive list of examples: Aggravating factors Mitigating factors Seniority (depending on violation) Seniority (depending on violation) Disciplinary record riddled with violations Clean disciplinary record Significant consequences of the violation for the business, customers, colleagues, etc. Violation with no significant consequences for the business, customers, colleagues, etc. Status or importance of the employee’s duties to the business Employee’s tasks are generally supervised or not critical to corporate affairs Premeditated violation Violation that was not premeditated Absence of remorse or apology Admission of guilt, show of remorse and apology Lack of collaboration or transparency during the investigation Collaboration and transparency during the investigation Employee autonomous when carrying out duties, generally without supervision Lax supervision or requirements on the part of the employer in the past in relation to the violation Step three: imposing the disciplinary measure  Once you have determined the disciplinary measure that best fits the circumstances, you must call a meeting to inform the employee of the measure. As with investigation-related meetings, you must meet with the employee in private and ensure that a witness is present with you to take notes during the meeting. Notes and disciplinary measures must be entered in the employee’s file. During the meeting, a disciplinary letter must be given to the employee, and the contents of the letter must be repeated to confirm the measure being imposed and to clearly and succinctly explain the violation(s) the employee is accused of. If the measure is not dismissal, you should take the opportunity to remind the employee of your expectations, which should also be explicitly stated in the disciplinary measure letter. In addition, the letter should state that any subsequent misconduct may result in a more severe disciplinary measure, which could even include dismissal. We remind you that you must document and carry out the measure in accordance with the requirements of the collective agreement and business policies, if applicable. Conclusion This quick reference guide should help you plan the imposition of a disciplinary measure to ensure that you: Carry out a proper investigation; Carefully select the measure to be imposed; and Impose a disciplinary measure in an appropriate manner, ensuring that you monitor your employee’s disciplinary file. However, measures must be imposed on a case-by-case basis. Our Labour and Employment Law team is available to advise and assist you for each of the three steps.

In June 2018, amendments made to the Labour Standards Act ("LSA") included additional obligations and responsibilities for personnel placement agencies and temporary foreign worker recruitment agencies (the "Agencies"). However, these amendments were only supposed to come into effect on the date the government adopted a regulation setting out the standards and procedures for giving effect to the amendments to the Labour Standards Act. On April 10, 2019, the Quebec Minister of Labour, Employment and Social Solidarity published a Draft "Regulation respecting personnel placement agencies and recruitment agencies for temporary foreign workers" (the "Draft Regulation"). Although the introductory text to the Draft Regulation states that "the impact study shows that the proposed measures will have an insignificant impact on enterprises", on the contrary, our analysis of the Draft leads us to conclude that it will impose significant constraints on the Agencies. The beneficiaries of this reform appear, rather, to be the Agency workers and client enterprises. Agency Licence The Draft Regulation establishes a mandatory licensing scheme for Agencies: To obtain an operating licence issued by the Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST"), the Agencies and their officers must meet a series of criteria relating to integrity, transparency and solvency. These Agencies and their officers must be in good standing with various governmental departments and bodies, both in terms of compliance with the laws and the payment of fees or contributions. For example, an Agency may be disqualified if "in the 5 years preceding the application, the person, partnership or other entity has been condemned by an irrevocable decision of a court relating to discrimination, psychological harassment or reprisals, as part of employment" or because of criminal or penal convictions connected with the carrying on of the activities covered by the license application. All licences must be renewed every two years and, in the absence of new facts, a period of two years must elapse before a new licence application can be filed following a denial. Applications for a placement agency licence must be supported by the payment of security in the amount of $15,000 (to guarantee the protection of employees' rights under the LSA). Protection Of The Rights Of Agency Employees The Draft Regulation requires Agencies to take various measures to promote the exercise by employees of the rights protected by the Labour Standards Act ("LSA"). For example: The Agency must provide the employee it assigns to a client enterprise with a document describing his or her working conditions and identifying the enterprise in question. It must also provide the employee with the information documents made available by the CNESST concerning employees' rights and employers' obligations in respect of labour. The Agency must remind the client enterprise of its obligations regarding employee health and safety. The Agency may not charge fees to an employee for his or her assignment or training. Finally, restrictions on the hiring of Agency employees by a client enterprise may not exceed six months following the beginning of the assignment. Administrative Measures And Appeals The CNESST may suspend an Agency's licence at any time in the event of a breach of the requirements and, once the Draft Regulation has come into force, the Agency will be able to appeal the CNESST's decision to the Administrative Labour Tribunal (the “ALT”). Procedures For The Forthcoming Adoption Of The Draft Regulation Anyone wishing to make comments on the Draft Regulation is invited to submit them in writing to the Minister during the 45-day period beginning on April 10, 2019. We expect that various associations will be up in arms to get the Minister to relax what amounts to a very restrictive regulatory framework. At the end of this 45-day consultation period, the Minister may proceed with the formal publication of the Regulation, which will come into effect 15 days after publication. Agencies that are already operating on the date the Draft Regulation comes into effect may continue to operate, provided they apply to the CNESST for a licence within 45 days of that date. Note: All the provisions of the Labour Standards Act ("LSA") relating to Agencies will become law at the same time as the Regulation, including section 41.2 of the LSA, which prohibits a placement agency from remunerating an employee at a lower rate of wage than that granted to the employees of the client enterprise who perform the same tasks in the same establishment solely because of the employee's employment status. For the complete version (only available in French) of the draft regulation, click here.