Employment lawyer Stuart Rudner finds employers sometimes forget the ‘action’ part of an action plan, which opens the door to liability
In my experience, I often see files cross my desk which have become adversarial or “legal” because of a failure to properly carry out a plan, something which can be easily avoided.
In many cases, the genesis of the situation is that an organization has an employee that is not working out, whether for misconduct or sub-par performance. Either way, the organization may try to work with the individual in order to improve the situation. However, well-meaning managers and HR professionals are often so busy that the well-designed plan they came up with ends up at the bottom of the pile on their desk and eventually falls by the wayside. Eventually, the organization decides to get rid of the problem employee because there has been no improvement, and we are then left to assemble the documentation to support the dismissal. Not surprisingly, in most cases the documentation is spotty to non-existent and the organization has opened itself up to unnecessary liability.
Plans require action on both sides
Take, for example, this scenario based loosely on a recent client. An employee was in place who was widely perceived to be highly skilled but was failing to meet certain basic requirements. After several verbal warnings — with no written records — a meeting was held at which the employee was placed on a Performance Improvement Plan (PIP) with detailed goals and specific timelines. As part of the plan, various managers would work with the employee to help him improve his performance. The goal here was to help the employee improve so the relationship could continue, not to simply build a file for dismissal.
The employee was called in and advised of the concerns and the terms of the PIP. It was made clear this was his “last chance.” Although somewhat reluctant, he was willing to give it a try. Everyone went back to their offices and the piles on their desks and in their in-boxes. Six months later, someone remembered the PIP, assessed the situation and determined there had been no improvement. Emails were sent around confirming the employee had apparently not done anything to improve. However, no one commented on the fact the managers had not done anything either.
Ultimately, management decided this had “gone on too long” and there was no point in giving the employee more chances. A meeting was scheduled and the employee was advised he was being dismissed due to his ongoing poor performance and lack of effort to improve. The employee was somewhat surprised, since the last he had heard about the PIP was half a year earlier and he had been waiting for the managers to work with him. However, somewhat in shock, he gathered his belongings and went home. Needless to say, when the time came to assess the strength of their dismissal “for cause,” it was not a very positive discussion. All of the people involved had effectively dropped the ball. By failing to follow their action plan, they created unnecessary liability for the organization.
In another instance, I was consulted by an employer that had recently dismissed one of its employees for cause. According to the employer, the employee had been found to have breached a policy regarding selling outside of his allocated jurisdiction. When I asked for the file, there was almost nothing to provide. There were no records of any warnings and, after several weeks, the employer had to admit it could not even find the policy that it purported to rely upon. After some digging, it became apparent a meeting had taken place several years earlier, at which time the issue of employees selling outside their jurisdiction had been raised. At that time, it was agreed that certain people would be tasked with drafting a policy, with the anticipation it would then be rolled out, staff trained on it, and it would be enforced. Perhaps not surprisingly, nothing further was done. And they had just fired someone for breaching a non-existent policy.
Both of these scenarios are examples of circumstances where action is required, but not taken. Larger organizations will appreciate the fact that this is not unusual. However, without action, a plan is meaningless. For that reason, I often encourage our clients to develop action plans and implement systems in order to ensure they are followed. This requires a system that will clearly assign tasks, track progress and create reports. As well, it must disseminate information to those involved so they are all aware of what has been done and what needs to be done. Follow-up reminders must be set up.
There are mechanisms out there to help organizations create and follow action plans, so those dealing with HR issues should seek out and adopt some form of process management to ensure action plans are carried through.
Stuart Rudner is a partner in Miller Thomson LLP’s Labour and Employment Group in Toronto. He can be reached at (416) 595-8672 or firstname.lastname@example.org.