Changes to job qualifications

Can an employer change the qualifications required for an employee’s position? If so, can the employer dismiss those employees who do not meet the new qualifications?

Colin Gibson
Question: Can an employer change the qualifications required for an employee’s position? If so, can the employer dismiss those employees who do not meet the new qualifications?

Answer: In unionized workplaces, arbitrators have long recognized that subject to statutory or collective agreement restrictions, an employer has the management right to establish the qualifications required for a particular job.

Depending on the circumstances, employers may require a variety of qualifications, such as specific educational requirements, trade certifications and licences.

But an employer must be able to show the qualifications are reasonably related to the job and were not established in bad faith. The reasonableness of a particular qualification will depend on the circumstances of each case.

Similarly, an employer may alter the qualifications required for a particular job, subject to the same reasonableness and good-faith limitations.

New or different qualifications may be justified, for example, where there has been an alteration in job functions or other workplace circumstances, or where industry or regulatory requirements have changed.

If the incumbent cannot satisfy the new qualification requirements, the employer may be able to lay the employee off or treat the situation like a non-culpable performance issue, subject to the provisions of the collective agreement.

Employers of managerial or other non-union workers also have the right to establish and alter the qualifications required for a particular job.

An employee’s failure to maintain required qualifications may enable his employer to terminate the employment relationship without notice or payment in lieu. In Thomas v. Lafleche Union Hospital Board, a director of nursing was summarily dismissed after being found guilty of professional misconduct and having his nursing registration revoked by his professional association.

The trial judge upheld the dismissal, on the ground the employee’s loss of his registered nurse status had frustrated the employment contract. On appeal, the Saskatchewan Court of Appeal held the facts supported a finding of just cause for dismissal, and said the employee’s loss of his professional qualifications had rendered impossible and, indeed, illegal the performance of the vast majority of his duties under the contract.

Imposing new qualification requirements upon an employee may result in a claim of constructive dismissal. In Re Kustom Towing Ltd. the British Columbia Employment Standards Tribunal considered a situation where an employee who had been involved in several motor vehicle accidents was suspended by his employer and required to obtain a class three driver’s licence.

The tribunal noted the employee was not required by law to have a class three licence, and ruled the terms imposed by the employer amounted to a substantial alteration in the employee’s conditions of employment and was a constructive dismissal.

Employers must be mindful of their obligations of good faith and fair dealing if they seek to discharge an employee for failing to meet required qualifications. If a court were to find the employer imposed the qualifications in bad faith or without proper justification, the employer may be exposed to additional wrongful dismissal damages under the principles outlined in Wallace v. United Grain Growers Ltd.

For more information see:

Thomas v. Lafleche Union Hospital Board, 1991 CarswellSask 196, 36 C.C.E.L. 251 (Sask. C.A.)

Re Kustom Towing Ltd., BCEST #D437/97

Wallace v. United Grain Growers Ltd., 1997 CarswellMan 455, 36 C.C.E.L. (2d) 1 (S.C.C.)

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at cgibson@harrisco.com or (604) 891-2212.

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