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Employment Performance and Merit are Not Relevant

Discipline and Dismissals

I’ll qualify that statement: performance and merit are not relevant when it comes to assessing your entitlement to notice of dismissal or severance. In fact, they are also irrelevant with respect to whether you can be dismissed at all.

Employers can decide who to keep and who to let go, without the need to justify their decisions.

This often comes as a surprise to people, but the simple fact is that with the exception of unionized workplaces, most employees can be dismissed at any time and for almost any reason, or for no reason at all. It does not matter whether they were the best employee in the organization, or that they were the longest serving or hardest working. An employer can decide who to keep and who to let go, and they do not need to justify their decisions. My go-to example in recent years has been that an employer could choose who to let go based on the colour of their shirt, but not the colour of their skin.

We often have people come in to meet with us after they have been terminated from their job. We ask them to provide us with relevant documents, but have to stress that in most cases, performance reviews and commendations are irrelevant. Nevertheless, we still regularly receive them, and often hear from our new clients about the contributions they made to the company and recognitions that they received. While impressive, we usually have to explain that their strong performance does not change the fact that their employer can let them go and the high performance ratings, commendations, and merit increases have no impact on the length of their notice period.

When Employment Performance and Merit May Become Relevant

The only contexts in which the reason for a dismissal will be unlawful are where they are based upon a ground protected by human rights legislation, such as gender, race, or sexual identity, or where the dismissal is a reprisal for things like enforcing one’s rights pursuant to employment standards legislation. In other words, the statement that the reason for dismissal does not matter is qualified by the fact that it cannot relate to a protected human right or be a reprisal for enforcing one’s rights.

If the (former) employee can credibly assert that the dismissal related to a protected ground, then the employer will have to justify their decision. And in that context, employee performance can become relevant, since the employee may take the position that if the employer did not decide based on merit, the decision must have been based on something it should not have been. After all, why would an employer dismiss a strong performer and keep a weaker one?

Don’t assume strong employee performance changes entitlement to notice or increases.

Aside from the potential need to justify the decision to dismiss, which will not arise very often, performance is irrelevant. As we often explain, in addition to the entitlement to notice of dismissal or severance, there are many potential factors; dozens, in fact. However, performance is not one of them. Whether you were an exceptional employee, an average one, or a poor one, your entitlement to notice of dismissal will be the same.

The takeaway from this post is fairly simple: most readers should not assume that being a strong employee will either protect them from dismissal or increase their severance entitlement if they are let go.

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