Proper documentation is essential to avoid complications down the road
Each time we start a fresh new year, we leave the annual performance review process safely behind us. We can usually assume we’ll never see the appraisal document and its ratings, comments and initials again. It disappears into a filing cabinet, where it goes dormant. Or so it may seem.
The review process often represents a lot of movement and little progress, and both the appraiser and the appraised dread this annual, ritual dance. A-players lament that there is no real difference between those who perform well and are self-motivated, versus those who are along for the ride and pocket their biweekly attendance fee.
When there is no accountability for failure or success, many won’t bother to make an effort.
Among the pits that managers fall into are playing favourites, striving to be friends with their team members and caring more about being liked than being respected. For the purpose of getting along instead of getting ahead, poor performance tends to be ignored (and thus condoned) and negative feedback is sugar-coated, papered over, watered down, sandwiched and obfuscated.
F’s are turned into D’s, D’s into C’s and so on. Supervisors “don’t want to discourage” their employees, aim to “keep them happy” and are looking to “give them something” to avoid the worst from happening. What it all boils down to is eluding the pain of having a meaningful conversation.
Where a need for improvement is noted, the wording is often so vague or matter-of-fact that any issue of substance, in the perception of the employee, is relegated to a footnote while, upon closer inspection, the footnote would have warranted an entire page or even a separate chapter. The result is that a review looks pretty good and an employee whose performance really doesn’t meet expectations is left with the impression that, all considered, things are going well.
At the end of the process, the parties sign off: the supervisor, the employee and the HR department. For poor performers, the HR manager’s initial could equate to having been given clearance to coast for another year, since they just agreed all was well. Wording is often so vague that the message is obfuscated.
It’s no wonder some employees are genuinely shocked when they’re let go — they didn’t see it coming as they were never given any real and honest feedback. Serious concerns were left to fester below the surface and when things finally came to a head, there is no record of performance issues.
After the departure
Upon departure, the ex-employee’s first call is to a legal advisor, who will ask to see the performance appraisals. If there are no real issues on record, guess what — apparently there wasn’t anything serious that warranted documenting.
To avoid any complication, an employer wishing to terminate an employee for performance issues must make sure to have a file with documentation to support the employee’s deficiencies and weaknesses before pulling the trigger too fast.
Usually, a certain event triggers the dismissal and brings a definitive end to the employment relationship. However, this event alone might not be sufficient to be considered serious enough to justify termination of employment.
Therefore, when an employer dismisses an employee without supporting information and evidence — such as previous warnings, verbal and written — that fairly reflect the employee’s inadequacy for the position and the other events that led to the dismissal, tribunals would generally conclude this was a wrongful dismissal.
An HR representative who signs off on a performance review that is misleading, because it doesn’t reflect the actual poor performance of the employee, could engage the employer’s “responsibility.” An HR professional who failed to do her job and did not comply with legislation or meet due diligence standards that come with the professional designation has become complicit to both parties’ misery: She jeopardized the employee’s professional advancement and the good functioning of the company.
Another set of facts is foreseeable: An employee, without being dismissed, can come to the point where he decides to resign because of the employer’s lack of support and absence of concern. If the employee feels he does not succeed in the undertaking of his duties and does not have the tools to his disposition to meet the employer’s expectations, he might lose confidence and his sense of usefulness in the company. This may lead to a diminution or demotion of his position.
Case law on this matter is clear: If the employer brings the employee to the point where he feels resigning is the only option because the essential conditions of the employment contract were substantially altered, it would be considered a constructive dismissal.
As a matter of fact, before dismissing an employee due to performance issues, employers must allow him to improve, and provide him with the necessary tools to do so, during a reasonable period of time. Without concrete feedback, the employee is unable to identify his weaknesses, meet the employer’s expectations and thus redeem or progress.
As a result, the employer may be slapped with a wrongful dismissal claim, be on the hook for reinstatement, back-pay, indemnity in lieu of termination notice under common law or civil law, and any other remedy a tribunal may be entitled to impose.
When supervisors produce performance appraisals that don’t reflect actual employees’ performance and HR goes along with the charade, we may not be able to get away with saying, “My signature only indicates that I have read and discussed this performance review.” The consequences are real.
Evert Akkerman is an HR professional based out of Newmarket, Ont., and founder of XNL HR. He can be reached at email@example.com. Justine B. Laurier is a partner at Borden Ladner Gervais in Montreal specializing in labour and employment law. She can be reached at firstname.lastname@example.org.