The Tribunal administratif du travail recently released Major c. Nova DM Média Canada inc., 2016 QCTAT 4423, which clarified an employer’s burden of proof to demonstrate that an employee was laid off as part of an administrative reorganization rather than dismissed not for good and sufficient cause.

In this decision, administrative judge François Caron relied on Selianov c. ABPTS inc., 2010 QCCRT 0138, in order to explain the burden of proof in the context of redundancy dismissals. Selianov established that in case of dismissal, the employer must prove, on a balance of probabilities, that the economic or organizational reasons are real and that the termination of employment is a result of those reasons. Therefore, these reasons cannot be used as a pretext to conceal a constructive dismissal and the employer must establish that the criteria used to select the employee are objective, impartial and not based on the employee’s subjective characteristics. Once this has been demonstrated, the employee must then show that the economic or organizational reasons are not well-founded or that the selection criteria used by the employer are unfair, unlawful or unreasonable.

On the merits of the case, administrative judge Caron concluded that the employer’s reasons supporting the administrative reorganization were real and that there was a causal link between those reasons and the termination of the laid-off employee’s employment. The administrative judge specified that the employer was not required to file its financial statements or other documents of this nature to establish that the reasons supporting its administrative reorganization were real. Rather, the employer can establish its reasons by way of testimony. The administrative judge also held out that lay-offs can occur even in the absence of economic difficulties.

In this case, the employer had selected the laid-off employee based on the fact that his salary was higher than the other employee working in the same department who took over some of the laid-off employee’s duties. Thus, while this second employee subsequently performed 70% of the laid-off employee’s tasks, this was not sufficient to conclude that the laid-off employee had been dismissed rather than made redundant. Therefore, when a position is abolished, it does not necessarily mean that the tasks that were attached to it cannot be accomplished anymore within the company. The employer may choose to internally redistribute a significant portion of the tasks while dropping others as part of a genuine administrative reorganization.

Finally, administrative judge Caron concluded that the decision to dismiss the employee in favor of a less qualified and less expensive one was reasonable. The remedy under section 124 of the Act Respecting Labour Standards was not allowed.

We believe that this case is of interest to non-unionized employers who wish to conduct an administrative reorganization. However, such employers should bear in mind that they may have to fulfill additional obligations under any applicable employment agreements and the civil law.

Written with the assistance of Geneviève Plante, articling student.

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