If you have been placed on a performance improvement plan (PIP) or who otherwise believe that you may be terminated for cause from you employment you should take proactive steps to protect your interests. It is usually a mistake not to respond, in writing, to your employer’s criticism. Failing to respond will allow your the employer to set the stage and to create its own set of facts. It is not unusual for an employer to make the decision to dismiss an employee and then place an employee on a PIP so that it can rely upon the PIP to justify its decision to dismiss.
It is important to understand that the vast majority of non-unionized employees in Ontario can be terminated without cause from their employment at any time for any lawful reason as long as the employer provides proper notice of dismissal. Therefore, there is no guarantee that you will not be fired no matter what steps you take. Nevertheless, a well-planned response to employer criticism will increase the likelihood you will either:
- not be terminated from your employment;
- be able to push back the date of dismissal, providing yourself with more time to find alternative employment; or
- place you in a much stronger position to negotiate a severance package if the employer takes the position that it had cause to dismiss you for cause. A well thought out response to your employer’s attempt to build a case to justify a dismissal for cause can significantly undercut and weaken your employer’s case.
The key elements of your response to an explicit or implicit threat of dismissal for just cause include the following:
- document, document, document – ensure that any employment related meetings or discussions are documented. As an example, you should send a follow-up email setting out the key details discussed at any employment related meetings. By drafting the emails you will frame the facts, particularly if the employer fails to reply to your emails. Written documentation will be important if litigation is threatened or commenced at a later date. In particular, the documentation will help minimize “he said, she said” disputes that often arise when parties disagree what was said in undocumented meetings that may have occurred months or sometimes years in the past. The documentation will place you in a better position to negotiate a severance package if you are dismissed for cause and, if necessary, make it more likely that your version of events will be accepted as fact by a court;
- ensure that copies of employment relevant documents are taken home. This would include the employment contract, performance appraisals and targets, employment related emails, performance improvement plans and copies of any relevant employer policies such as bonus and stock option plans. You may be dismissed at any time and it is better to possess these documents at the outset of any dispute. You should not take home the employer’s proprietary documentation that is unrelated to your employment status with the employer;
- be alert to any employer criticism that is subjective (e.g. based on your manager’s opinion and not easily measurable). Although subjective criticism is a legitimate component of any performance review, it is this type of criticism that is most likely to be abused if your employer/manager is acting in bad faith. This is particularly true you have been meeting or exceeding your objective (i.e. measurable) targets such as sales quotas. Respond to subjective or vague criticism by repeatedly asking, in writing, for additional information to clarify your employer’s expectations. Ask for more detail. If additional detail is not provided to you, ask again. Whenever possible, ask to be provided with measurable goals and targets;
- if the employer’s criticism relates to a workplace standard or expectation that has not been clearly stated in the past (e.g. set out in your job description, latest performance review etc.), consider stating in writing that you were either unaware of the workplace standard or unaware of the importance of the standard;
- formally request, in writing, to be provided with additional training. You should document any instances when you were not given the training normally provided to others occupying the role;
- if the employer has provided a timeline to improve performance, you should consider taking the position, in writing, that the time frame provided is insufficient and unrealistic. Similarly, if the goals and objectives set out in the timeline are unattainable in the time frame provided, ensure the employer is made aware that the target is unrealistic;
- ensure that the employer is made aware, in writing, of any personal issues that you may have that impacted your recent performance;
- ensure the employer is made aware of any medical conditions, family or religious obligations that may be impacting your performance. The employer may have an obligation under the Human Rights Code to accommodate your needs or medical condition to the point of undue hardship. If the employer fails to do so, it may be in breach of the Code;
- remind your employer of your past accomplishments and current areas of success;
- only accept responsibility for shortcomings if it is clear that you were responsible for the substandard outcome. Document other contributing factors to the problem such as the performance of other employees, poor market conditions, lack of managerial support, or a flawed strategy. The key is to push back without overshooting. The warning to not overshoot is important because it will be damaging if you are perceived to be wilfully blind, in denial, or unwilling to take responsibility for factors obviously under your control;
- prepare a Plan B and begin an active job search as soon as possible. Use the time provided by the performance improvement plan to have a job search well underway in case you are ultimately dismissed; and
- consider retaining an employment lawyer to assist and strengthen your response to your employer. You will hopefully only face this type of situation once or twice in your lifetime. In contrast, a lawyer whose legal practice is focused on employment will provide this type of advice on a regular basis. I usually have several clients at any given time who I am advising as they respond to their employers’ actions. The employment lawyer will act in the background (usually unbeknownst to your employer) assisting you by either ghost writing your responses to the employer or by coaching you on how to plan your response to the company. The lawyer will also be able to provide you with objective feedback regarding the strength of your employer’s case against you, including evaluating the risk that the employer might be able to successfully fire the employee for cause. In short, your employment lawyer’s expertise will level the playing field and perhaps even tilt it in your favour at a time when you are extremely vulnerable.
If you want legal advice that is specific for your case, book a consultation today.