Can we fire an employee who is still not performing after performance management?

The short answer is yes, you can. The goal of performance management and a PIP is to improve an employee’s performance, but it also is designed to ensure that if an employee does not improve then you are able to terminate them with just cause, and significantly reduce your severance obligations.

There are, however, a series of hoops that any employer must jump through in order to reach that point. First, an employer’s workplace policies should be crystal clear in informing employees that policy violations may lead to discipline up to and including dismissal. Likewise, the performance improvement plan should also make it clear to employees that if they are not successful in improving their work, then they may be subject to dismissal for just cause. You will also have to establish that the performance expectations were reasonable. For example, if the expectation is that an employee make 20 widgets per hour, but the evidence establishes that the company average is 10, firing one worker for cause because they “only” averaged 10 would not be justifiable.

The other crucial step before any dismissal for cause is documentation. The employer needs to keep thorough, detailed records of both the employee’s missteps, and the failed attempts to rectify their behaviour. Without these records, it would be impossible for any termination with cause to survive a legal challenge. Remember, ‘just cause’ is the capital punishment of employment law, and is not to be taken lightly. Saying that an employee was not performing well without the supporting documentation to prove it will not only welcome a wrongful dismissal lawsuit, but that employee will likely make an additional claim for the employer’s bad faith. 

Employers can terminate an employee at any time by providing reasonable notice, but speak with an employment lawyer before going ahead with any termination, especially if you are intending to terminate their employment for cause.