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Employee Performance Problems

December 11, 2002
by Israel Foulon LLP

Whether out of fear of legal repercussions, ignorance or lack of knowledge about how to handle them, many managers are paralyzed when it comes to dealing with problems related to poor performance or attitude in employees. Here are the main elements of a sound performance management program:

  • Step 1. Starting at the top of the organization and working down, analyze each job and develop a written position description. Review the job description with each employee on an individual basis so he understands the position’s duties and management’s expectations for successful performance. Job descriptions should be reviewed at least once a year at which time expectations are set for the next year and any deficiencies from the previous year are discussed.
  • Step 2. Clearly communicate unacceptable standards of conduct and state the consequences of such conduct, specifying what kind of behaviour will lead to immediate dismissal and what kind will lead to intermediate discipline.
  • Step 3. A corrective action process must be clearly defined, communicated to all employees and consistently applied. The most common corrective action sequence is:
    • Verbal warning.
    • Written warning.
    • Suspension, with or without pay. But the employer must have a clear written suspension policy statement that is shared with the employee prior to the employee starting employment, otherwise a suspension with or without pay may be seen by the courts as a constructive dismissal.
    • Termination of employment.

    It is important to include a statement that management has the sole and absolute discretion to deviate from the steps where it deems necessary.

  • Step 4. Having clearly defined job expectations and the corrective process as part of their everyday responsibilities, managers must monitor employee performance and record concerns, achievements and commendations. The contents of this performance evaluation should be communicated to the employee in a constructive manner.
  • Step 5. If performance or attitude problems persist, immediately discuss them with the employee and document them properly. Show such documentation to the employee to demonstrate the nature of your concerns. Having the employee initial the documentation is a good idea so there cannot be any allegation after the fact that the employee had not been made aware of the performance problems.
  • Step 6. If problems continue, management should develop a corrective action plan with the employee that includes realistic expectations within a realistic time frame. Put this plan in writing, give the employee an opportunity to add any further comments and have him sign the document to show he’s read it. Schedule a specific date for a followup meeting. But if further issues arise before that date, clarify in the plan that management may immediately review the performance situation with the employee and take whatever steps are deemed necessary.
  • Step 7. Managers should be given the training and support needed in order to deal with performance issues.
  • Step 8. If the employee successfully completes the corrective action program, confirm this in writing and advise the employee the company expects them to maintain this standard. If not maintained, management reserves the right to deal with further difficulties at any stage of the corrective action process.
  • Step 9. If the deficiencies continue, give a final written warning to the employee, before the corrective action period expires. The warning should reiterate the steps management has taken to assist the employee, and the employee should be notified exactly what he must achieve within what is typically a very short time period, for example two to three weeks. Advise the employee in very clear language that failure to achieve these requirements will result in immediate dismissal for cause.
  • Step 10. If the employee fails to meet the requirements, management is then in a position to terminate the employee for just cause and may be able to avoid any liability for notice. But it should be noted there may still be statutory severance or notice payments required, depending on provincial legislation and depending on whether the performance problems of the employee amounts to “willful misconduct.”

By following the approach outlined above, employers will have either a productive and motivated employee or will be in a strong position to advise a court, administrative body or the employee’s solicitor that:

  • there was a clear policy in place;
  • the employee knew what was expected;
  • the employee was informed verbally and in writing of the deficiencies;
  • specific examples, guidelines and corrective plans were provided to assist the employee;
  • the employee did not sufficiently remedy the problems;
  • the employee received a final warning that his employment was at risk; and
  • the employee ignored or continued to fail to meet the job requirements.

Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today.


Legal Disclaimer

This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation. Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.