Employers’ Corner

An employer faced with an employee with performance issues should consider the following when developing a response to the problem employee:

the first decision that should be made is whether the best response is to simply dismiss the employee without cause and provide a severance package or whether the employee with a reasonable opportunity to improve failing a case will have been built to justify firing the employee for cause. The specific facts of the case and particular circumstances of the employer will dictate the strategy. In cases where the employer does not see a long term future with the employee, an immediate dismissal without cause may be the most cost effective decision rather than spending the time and money attempting to create a case that will justify a termination for cause;

when creating a performance improvement plan to deal with a problem employee, take into account the individual circumstances of the employee. In particular, consider the employee’s age, length of service, and position as well as any other personal factors that might be impacting the employee’s performance. Ask the employee, in writing, if there are any personal issues that may be impacting his or her performance;

be alert to the possibility that the employee’s manager is criticising the employee’s performance for reasons unrelated to legitimate workplace requirements. It is not unusual during the course of wrongful dismissal litigation for it to become apparent that a manager used the performance review process as a weapon to satisfy a personal vendetta against the employee. The employer will face significant legal liability if, as an example, the manager convinced the employer to dismiss a subordinate employee for cause and it is ultimately found that the manager’s motivation was to retaliate against the employee for refusing his or her sexual advances.

be alert to grounds that may require that the employee be accommodated to the point of undue hardship to comply with the Ontario Human Rights Code. Normally an employee is expected to advise his or her employer of any condition or circumstance that will trigger the employer’s duty to accommodate. However, the employer risks liability even if the employee does not directly communicate his or her need for accommodation. The Human Rights Tribunal or Court may find the employer liable for breach of the Code if the employee’s need for accommodation was “otherwise known” to the employer in a manner sufficient to engage the duty to accommodate.¹ It is a mistake to be wilfully blind or ignore suspicions the employee is suffering from an affliction that would be protected by the Code. In particular, employers should be alert for employees who may suffer from addictions that may be contributing to performance or disciplinary problems, even in situations where the employee has denied the addiction;

when dealing with poor performance, resist the temptation to use a performance improvement plan as a tool to justify a decision that has already been made to terminate the employee for cause. It is unlikely that a termination for cause will be able to withstand the scrutiny placed on it during a wrongful dismissal action if the sole purpose of the performance improvement plan was to set up the employee to fail. Moreover, if the employee is treated badly in the lead up to his or her dismissal, there is also a risk that employer may also be liable for moral and/or punitive damages in addition to damages for wrongful dismissal;

when setting goals or expectations for an employee with performance issues set objective, measureable, criteria whenever possible. Ensure that the objectives are achievable and reasonable for an individual occupying the employee’s job position;

make it clear to the employee, in writing, that if the problem(s) that led to the PIP are not corrected by a specified date, the employee will be terminated for cause. It is a mistake to give the employee ambiguous messages;

provide the employee with a reasonable period of time and, if necessary, training to improve;

have regularly scheduled meetings with the employee throughout this period of time to document and discuss the employee’s success or lack thereof; and