Being dismissed for underperformance is not an easy task. Court cases clearly state that employers owe a duty to provide employees with the opportunity and means required to improve underperformance if being dismissing without pay for that reason. Judges require that employers prove an employee was grossly incompetent, and that progressive warnings clearly identifying areas of concern were issued.
Therefore, employers seeking to dismiss their habitual underperformer usually follow a prescription for a tidy divorce: create a paper trail documenting any and all allegations and concerns. Typically, this is accomplished by a series of negative performance appraisals. Employees, therefore, ought to consider the following response:
• Document your response to a challenged appraisal in writing and request that the response be placed alongside the appraisal in your human resource file.
• Performance appraisals should be remedial in nature. Point out that the standards expected are not objectively reasonable, are beyond your capability, were never communicated, or suitable instruction and supervision were never given to assist in meeting those standards.
• Although remedial, negative performance appraisals usually contemplate corrective discipline, which may eventually support the employer’s case for dismissal. Therefore, ask for sufficient time and support to correct any alleged deficiency. State that all of the company’s concerns can’t be addressed without assistance while also being expected to simultaneously maintain a regular workload.
• Express bewilderment if there is any marked inconsistency with previous positive appraisals or accomplishments, and point out any historical or recent achievements.
• State that prior to the appraisal, the alleged shortcoming was never verbalized and, as far as understood, you were just following the procedures or protocol in place.
• Note if there are any perceived inequities in the evaluation process of other less-scrutinized employees.
• Where specific actions or events are chastised, state your version of the events was not solicited before this criticism was levelled and then document this version regardless if it’s now sought.
• Ask for clarification and examples, in writing, regarding any aspects of the appraisal that is misunderstood or that may potentially be challenged. Point out that the explanation first provided was so vague that the underlying concerns can’t possibly be addressed.
• If there is any policy detailing the evaluation or appraisal process, point out any inconsistencies with the policy and state the appraisal did not meet the required criterion.
– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com
