Can a PIP be considered a ‘traumatic or work-related stressor’?

Recently, a B.C.-based flight attendant went before the Workers’ Compensation Appeal Tribunal (WCAT) to appeal earlier decisions regarding his claim for compensation for a mental disorder.

He had claimed his psychological symptoms were “traumatic or work-related stressors.”

But in January 2024, his appeal was denied, with the tribunal finding the worker did not develop a compensable mental disorder in 2019.

PIP among reasons cited for mental disorder

In his complaint for a mental disorder, the flight attendant cited several reasons for his distress, including co-workers apparently keeping tabs on him, an altercation with a co-worker over a safety issue, allegations of bullying and harassment, being treated unfairly, a lack of positive feedback, an apparent failure to investigate his complaints properly, fear of reprisal, feeling isolated and micromanaged, and differential treatment.

He also complained about being put on a performance improvement plan.

“The worker provided a letter which indicated that he found a number of occurrences stressful and traumatic including his demotion, suspension, performance plan, being sworn at by a co-worker, and being disciplined unfairly,” said the WCAT in its decision.

“There's a lot of anxiety and a lot of stress that comes with [a PIP],” says Imtiaz Hafiz, student-at-law at Osuji & Smith in Calgary.

“Unfortunately, we do see a lot of cases where employees come to us, after being put on a PIP, and they want to come and get our opinion on what's likely to happen.”

Many employees feel like a performance improvement plan is the final step before they are shown the door, says Chris Achkar, principal and employment lawyer at Achkar Law in Toronto.

“If it is framed and it's presented as truly a good faith effort to help someone improve, it should be taken that way by the employee. But we're all human and we can be sensitive, so when someone tells us — after working for a few years at a position — that we need to look at this again properly, that will scare the average employee.”

While the flight attendant had concerns about several conditions and situations at his workplace, the complaints about his PIP serve as a reminder for employers and HR on how this common practice should best be handled.

Mental health and accommodations

In its decision, the WCAT cited B.C. legislation that states all workers are exposed to “normal pressures and tensions” at work associated with their “duties and interpersonal relations.”

“In determining whether a particular event is traumatic or the stressor is significant, the worker’s subjective statements and response to the event or stressor are considered, but also involves objective analysis,” it said, and for the purposes of this policy, a “traumatic” event is an emotionally shocking event.

In looking at the flight attendant’s situation, the tribunal could not conclude that any of the identified events “rose to the level of traumatic.”

As for a work-related stressor, that is considered “significant” when it is excessive in intensity or duration “from what is experienced in the normal pressures or tensions of a worker’s employment,” said the WCAT.

“Factoring in the general characteristics of a worker with ADHD, it is unclear to me that even on a subjective level, gossip about a demotion and performance plan would rise to a significant stressor.”

It’s a tricky situation for employers when they hear these types of concerns — especially if it’s after the termination, as with this case, says Achkar.

“The smart thing for an employee to do is if they're put on a performance improvement plan, and they see that it is affecting their mental health one way or another, they should go get a doctor's note that says, ‘This performance improvement plan is affecting [them] this way and that way,’ and they actually have to accommodate and modify the performance improvement plan to suit the accommodation needs of an individual.

“But if employers and HR folks don't know about it, then how can they? It's hard to ask or tell an owner or company, ‘Well, you should ask them if this performance improvement plan is affecting their mental health so that we accommodate it or we modify it more.’ It's potentially to the point of undue hardship then, and an employer can’t be expected to accommodate to that extent.”

Confidentiality key to supportive PIP

Nevertheless, going on a PIP can be highly stressful for an employee, says Hafiz.

“The best way to ensure that it doesn't affect the employee as much as it should, as much as it could, is to make sure that it's a collaborative process, and ensure confidentiality.”

Loss of reputation is a big stress if work colleagues find out you’ve been put on a PIP, he says, as seen in this case when the worker was concerned about workplace gossip.

“It's important for HR and line managers to make sure that the confidentiality of the employee is maintained… it should not be a public matter, it should not be something that other employees should be aware of.”

Employers always should keep a performance improvement plan confidential, says Achkar.

“Sometimes it's hard if you need shadowing: how are you going to hide it? But employees who are on a PIP should certainly not be paraded by management — every precaution should be taken to not make it clear to everyone else.”

Another reason why employees get stressed about a PIP is fear of the unknown, says Hafiz.

“‘If I fail, I don't know what happens to me.’ So the anxiety that comes from not knowing what's at the end of this process is something that the employer should probably be [addressing] to help employees understand or not be stressed out.”

Assuaging fears with well-laid-out plan

In the B.C. decision, the worker said he found the reasons for the performance plan “to be vague and accusatory.” In addition, the flight attendant’s manager said she was not aware if the performance plan was implemented properly.

One of the main ways that employers get this wrong is not specifying the expectations, says Hafiz.

“When you put somebody on a performance improvement plan, you need to be very specific about what is it that you want the employee to achieve, or what skill or in what area you want the employee to develop.

“To do that, you need to be very specific in terms of what you expect, provide the exact result that you expect from the employee. And with that, you also need to provide a timeline, you need to tell them when you expect that result to be achieved.”

For example, an employer may say the person needs to change their attitude or be more active during virtual meetings, but “that's not specific, that's pretty vague — it doesn't really tell the employee what he or she needs to be doing in order to develop,” he says.

Many employers don't set the PIP up properly, says Achkar, and will basically say improvement is required within 90 days.

“Not setting it up properly from the get-go potentially leads to its imminent failure.”

Followup, collaboration make employee feel supported

Another big reason why a performance improvement plan can be stressful is if the employee feels unsupported. In the B.C. case, the flight attendant said his PIP was to include reviews and mediation sessions, but these were not conducted; he also said the additional training he received was basic.

But a PIP is meant to be a very collaborative, interactive program, says Hafiz.

“You need to have your one-on-ones with your employees very frequently, just to monitor and make sure the employee understands what's expected of them, and whether they're doing what they can or what they should be doing in order to achieve that,” he says.

“You need to be side by side with your employees, hold their hands and really walk them through what you expect them to do. And the whole time, you need to be providing feedback and be very specific about what the consequences will be if the employee is unable to achieve that.”

Another problem is when the reporting manager still uses the same managing or training techniques as before, doesn’t provide tools within that 90-day period for that person to improve, or check in often enough, says Achkar.

“That’s where the common denominator is a lack of attention and lack of focus on making the performance improvement plan and that duration well-thought-out, truly helping that employee try to succeed.”

Many leaders start with good intentions and see the individual perform well initially — but that’s because they’re scared they may be losing their job — so the checkins become less frequent, and soon the employee is back to their old ways, he says. “Consistency is extremely important.”

PIP about improvement, not discipline

Another big stressor? Thinking that the PIP is the beginning of the end. In the B.C. decision, the worker said he felt the plan “was another step to terminating him.”

However, the manager who was involved in the implementation of performance plans said it was not disciplinary in nature: “The performance plan had a template and the details were filled in. It was not considered a last step prior to termination. It was to assist the employee [to] improve.”

It really depends on the intentions of the employer and management, says Achkar.

“Many times, they use it just as an indicator, really, that they try to fix while they always have a plan to terminate someone. So if they actually are planning to properly use a PIP — which it always should be used as such, to bring them back to proper performance — then hopefully it won't lead to termination.”

The tricky part is when a person may be improving their performance in one area, while exhibiting unwelcome behaviour in another that can’t be corrected — which is what happened in this case, he says, “such as a terrible attitude or lying or yelling — these things sort of made it redundant at that point, because that behaviour reinforces to the employer that they may terminate regardless if that person improves.”

Unfortunately, there are a lot of cases where the PIP is used as a foundation or building block for ultimate termination — and that’s not how you're supposed to use it, says Hafiz.

“It’s not a disciplinary action, it's just an opportunity for the employee to improve their performance… Or even if it's not to build a case for termination, which would be in bad faith, sometimes it's just a misunderstanding of what a PIP is, and using that as a disciplinary measure. That's how a lot of employers use it.”

Just cause and PIPs

Unfortunately, a large number of employers use a PIP to dismiss an employee for just cause, he says.

“This is very problematic and not just because it's not lawful, it's also because ultimately what happens is this... gives the employee the right to actually sue for wrongful dismissal.”

That’s because when it comes to terminating somebody for cause, the threshold is high and when it comes to terminating somebody for lack of performance, that threshold is even higher, he says.

“Employers have an obligation, a legal duty, to help the employees get better at what they do, to set them up for success.”

If an employer wants to terminate someone for failing to do their job or not improving on their job, they “better have some really egregious facts such as refusal to participate in the PIP, refusal to address feedback, ignoring instructions, and being very egregious and non-compliant with very specific obligations set out by the employer and said very clearly on multiple occasions — and only on such instances, you'd see that a wrongful dismissal due to lack of performance is justified.

“Other than that, I mean, it's virtually impossible to prove, to justify just cause termination on the grounds of lack of performance.”

But if the PIP has been executed properly, and it’s shown that the employer has done everything possible to help this person improve, says Achkar, so “it's almost willful negligence that they're not trying to improve themselves by this point, ‘There's nothing else we can do’ — if that is documented, then you have a lot more in your hands to rely on if you go down the just cause route.”

Of course, employers don’t have to dismiss someone for just cause because of performance issues — they can just provide the appropriate severance or working notice, he says.

“But, generally, employers would like to not pay more than they have to, so at least giving them the option is good.”