Bad performance reviews and warnings

Question: Can a bad performance review qualify as a warning in a progressive discipline scheme? If a review states performance or attitude needs improvement and is unacceptable but doesn’t indicate any consequences, can it be considered a warning?

Answer: Generally speaking, the answer to this question will be “no.” Poor performance reviews are certainly helpful in establishing that an employee was aware her performance was not meeting expectations, which is important.

An employer seeking to summarily dismiss an employee due to incompetence or poor performance will generally have to establish the following:

• It has established reasonable, objective standards of performance
• The employee has failed to meet those standards
• The employee has had warning that she has failed to meet those standards and has had warning that her job will be in jeopardy if she continues to fail to meet those standards
• The employee has had a reasonable opportunity to correct the situation.

In the context of this question, the third item is critical. While the employee would presumably know her performance is unsatisfactory due to the poor review, there must be a clear warning that her job is in jeopardy. In other words, the employee must be told that failure to improve will lead to dismissal. Typically, that will not be stated in a performance review. As such, it will be difficult to proceed with dismissal for cause in the absence of clear warnings of the consequences of a failure to improve. The employer should make the employee aware of the risk of a failure to improve and then work with the employee to help her do so. Our courts will expect that the employer offer some reasonable amount of coaching, training, or other assistance. A Performance Improvement Plan is usually an appropriate mechanism to use before proceeding with dismissal.