Frequently Asked Questions

PERFORMANCE MANAGEMENT FOR EMPLOYEES

Even when we try our best at our jobs, no one is perfect 100% of the time. Sometimes we might make a mistake or two in our work because we’re overburdened or overtired. Personal circumstances can also weigh heavy on our minds, and can mean that we are not always as focused when we need to be. In fact, you may have a physical or mental condition that is affecting your ability to do your job.

Sometimes, it’s not your fault at all: perhaps you were performing quite well but your employer decided to implement new technology or changed the nature of your duties. Or perhaps you have a new manager that has decided, for one reason or another, that the work you have always done is suddenly unacceptable.

Your employer is entitled to expect that you do your job properly, but they cannot impose unreasonable expectations or penalize you arbitrarily. That said, it is important to remember, as we discuss in other places, that generally speaking, you can be let go at any time, for almost any reason, so long as you are provided with notice or compensation.

If an employer is concerned that an employee is not meeting expectations, they have options available. While they can end the relationship right away, many employers know that that is an expensive proposition, and that employees are likely to come back with a claim for wrongful dismissal. Instead, employers will often attempt performance management, such as a performance improvement plan, in order to get things back on track.

While employers are allowed to implement performance management, it does not mean that they always do it right. If an employer is acting in bad faith, or is setting you up to fail, then there may be serious consequences for their attempts to ‘manage’ your performance.

We frequently assist employees who are subject to performance management, and wanted to answer some of your most frequently asked questions:

When will employers implement performance management?

When employers do things right, performance management should be a routine part of your working life. Performance management does not always need to be disciplinary – it can include annual or quarterly reviews, or even regular check-ins with your manager to make sure that work is going well and moving at the right pace. 

If there are problems with your work, or your manager is looking to discipline you for what they view as a series of errors, then they might bring in some form of performance management, such as a Performance Improvement Plan (“PIP”). If the employer is doing things right, then a PIP should not be an unexpected step or come as a surprise. Company policies should dictate the standard that your employer is expecting, and should make it clear that performance management is the next step if there are performance concerns. 

Does it matter how long I’ve been working at the company?

It shouldn’t matter, no. Whether you’ve been at the company for 2 months or 20 years, you should be given an equal opportunity to meet expectations and succeed within your role.

The reality is that that does not always happen. If you have not been with the company long, your employer unfortunately may be short-sighted, and may think that it would be less of a headache to simply let you go than to spend any time or money trying to restore the employment relationship. Likewise, if you have been with the company for decades and are ‘old friends’ with the owners and managers, you may be used to them turning a blind eye to any bending of the rules. 

Employers should be treating every employee equally, and that means an equal application of discipline. A new employee should be given a proper opportunity to succeed, just as a longer-term employee in the same role should be held to the same standards. 

It is also important to note that courts will be more skeptical of performance concerns when they relate to a long-term employee with a good record. After all, it is hard to explain how a good employee suddenly becomes so bad that discipline or dismissal is warranted.

What if my performance is related to a disability?

The golden rule is that discipline should not be discriminatory. This means that an employee should not suffer negative consequences due to any protected human rights grounds such as their race, their sexual orientation, their gender identity or expression, or of course disability. 

This means exactly that – an employer should not be penalizing employees based on the grounds of their disability. We’ll often think of obvious examples, such as how it would be ridiculous to punish a visually impaired employee who could not read a computer screen easily, or how one would not punish an employee who uses a wheelchair from being unable to climb a flight of stairs. 

Yet this sort of discrimination can be much more subtle. Millions of adults suffer from a variety of learning disabilities, mental challenges and addictions which can impact their work subtly, such as how they comprehend directions, or how they perform a task. Human rights laws require employers to accommodate these disabilities to the point of undue hardship, which can mean offering instructions or guidance in a different format to help these employees succeed. Failing to do so, and then penalizing the employees for struggling, is an act of bad faith.

The catch though is that an employer needs to know about the need for accommodation in order to accommodate properly. Employers are not entitled to a diagnosis, but they do need to work with the employee, and potentially their physicians as well, in order to come up with solutions that work. Otherwise, if an employer does not know about an employee’s challenges, then they may issue discipline without knowing that the issue is related to a disability. 

Do I have to tell my employer that I’m struggling with my mental health or substance abuse?

This is a complicated question. The short answer is that mental health, including addiction, still qualifies under the grounds of disability. If you do find yourself struggling with your mental health (as millions of Canadians do) and need accommodation, you should be able to approach your manager or employer and hopefully come up with some solutions or options before the problem gets worse. Your employer might also be able to lead you towards an Employee Assistance Program, which is included in many extended benefit plans, and may provide mental health counselling or resources for addiction treatment. If you are being criticized or disciplined for performance issues that relate to a disability, it would be wise to pre-empt further discipline by disclosing that.

The unique feature though when mental health and addiction are involved is that it does not need to be the employee who comes forward first. If your employer sees that you are really struggling, and gets the sense that there may be a mental health issue, they actually have a legal duty to inquire and ask if you are alright or could use any help. Mental health is not always as obvious as a broken leg, and shame and stigma too often stops people from coming forward. 

Employers should ask if they see you struggling, and should try to connect you with available resources. They are not, however, therapists or social workers. If they make an inquiry, and you adamantly refuse help, then they can only be expected to proceed as normal.

What happens if I am the only one on the team receiving performance management?

While performance management can often be used in earnest, there are times where employers will use it specifically to single out a certain employee. For example, if 20 people on your team in the same role all made the same mistake, but you are the only one who has been disciplined, that is definitely a problem.

It all connects back to the employer’s duty of good faith. If your employer is setting you specifically up to fail, whether by setting unrealistic expectations, constantly criticizing and belittling your work, failing to provide any guidance or feedback, or other cruel treatment that is not being extended to your colleagues, that is likely workplace harassment and should not be tolerated by any employee. 

Contact a member of our legal team to learn more about your options. While your situation may look like performance management, it may have actually risen to something much more serious. 

What if I hit all of their expectations and they still let me go?

This depends on how your employer decides to end the relationship. 

Remember, any employee can be let go at any time, for practically any reason, so long as they are paid out properly. This means that so long as the employer is not discriminating against your protected human rights, they are completely free to let you go. Think of it this way – they can fire you for the colour of your shirt…just not the colour of your skin.

However, this does not necessarily mean that they were acting in good faith. If your employer had indeed shown bad faith in the way that they treated you leading up to your dismissal then there may be a potential legal claim there, and it’s likely an issue worth exploring with your employment lawyer before accepting any severance offer. If you accept an exit package greater than what’s in your contract, you’ll be doing so in exchange for a release preventing you from any further legal claims against the company, so it is always important to review the circumstances with your lawyer before signing off.

Can my employer really fire me with cause based on performance management?

Just cause is known as the ‘capital punishment’ of employment law, and with good reason. These are situations where employees have done something so blatant, and so unspeakable that an employer can let them go immediately, without any prior warning or without paying any severance.

Or so employers believe. The reality is that ‘just cause’ only applies in very rare circumstances, and the law states that only employees who have committed “wilful misconduct, disobedience or wilful neglect of duty” lose their entitlement to even their minimum termination payments entitled by law, let alone whatever entitlements may exist in their employment contract. In fact, employers who make allegations of just cause without sufficient proof not only will often lose their argument in court, but are often ordered to pay damages to their former employee for ending the relationship in bad faith.

This is also true when it comes to performance management. Employers may enter into performance management thinking that they have the option to terminate with cause if they do not see improvement, but they often fail to realize just how much paperwork is required to make that termination effective. They would need to properly document every misstep, every warning, and every act of progressive discipline in order to do things correctly. They will also have to establish that the performance expectations were clearly communicated and reasonable. For example, if the expectation is that you make 20 widgets per hour, but the evidence establishes that the company average is 10, firing you for cause for “only” averaging 10 would not be justifiable.

If you have been terminated with cause after a performance management plan, contact us right away and we can help do a deep dive to see if the employer is in the wrong. 

Can my employer fire me without any performance management plan at all?

Yes, however it depends on how they decide to end your employment. If they are offering you the notice or compensation you are entitled to, then they can effectively end the relationship at any time with no performance management required. 

If however they attempt to terminate you with cause, contact our office right away. There are very few possible situations where such a termination would be upheld by a court, especially without any sort of investigation. Not only are you likely owed reasonable notice of termination, but your employer may be liable for some serious additional damages for how they’ve carried out this process.

Our firm has decades of combined experience helping employees navigate the performance management process.

We understand that while performance management has its place, it is not always warranted, and it is not always done in your best interests. If you need guidance through the process, or things ultimately go sideways, we are here to help.

Contact us today.