This article looks at the benefits of performance management and progressive discipline policies. We also look at a performance improvement plan’s impact on an employee’s discrimination and harassment claim against her former employer before the Human Rights Tribunal of Ontario (HRTO).
What is a progressive discipline policy?
A progressive discipline policy sets out the stages that the employer will follow in dealing with employee performance problems. It should set out the various measures that will be applied (such as training, warnings, performance improvement plans, suspension and termination), along with other matters, including the timelines, expectations and consequences of failure to improve.
Such a policy provides transparency and consistency when dealing with performance issues. It should be brought to the attention of new employees and, along with the employment contract, be used to set employee expectations.
What are the benefits of having a progressive discipline policy?
A progressive discipline policy can deliver various benefits for both employers and employees.
Performance may improve, preventing the costs associated with hiring staff
Firstly, giving employees the opportunity and means to be able to improve helps both parties move past performance issues. Following a performance improvement plan or course of training may lead to improved performance and productivity. It may also obviate the need to replace underperforming employees, which can be both a time-consuming and expensive process.
Reducing the risk of successful claims by employees
Following a performance management or progressive discipline policy might also protect an employer from liability. As we have mentioned, whether the employer has followed a progressive discipline policy is important in determining whether a termination for cause was justified. This is because an employee can only be terminated for cause in certain circumstances, and a single instance of poor performance with no opportunity for correction is unlikely to meet the threshold.
In addition, demonstrating that a progressive discipline policy was followed before adverse treatment, such as termination, may reduce the likelihood of an employee succeeding in a human rights claim. This is because it may support a claim by the employer that the adverse treatment was due to poor performance rather than the presence of a protected characteristic.
Employee brought discrimination claim following termination
In Yan v 30 Forensic Engineering Inc., an employee brought a discrimination and harassment claim before the HRTO. She alleged adverse treatment on the basis of race, place of origin, sex, marital status, age, disability and reprisal.
The employee, a woman born in China in her late 40’s, started working for the employer in April 2018. She was a senior associate forensic engineer, and according to her employment contract, she was responsible for supervising and coaching associates in her team.
The employee was terminated without cause in January 2019 following several incidents.
Employer argued the termination was for failure to fulfill job requirements
The employee made a number of allegations, but the main one was that she was discriminated against on the basis of race, age, gender and country of origin. The key event supporting this claim was the employer’s production of custom T-shirts featuring the company chairman’s face on a photo of Chairman Mao’s head, along with emails amongst the management team saying that the T-shirts would look bad in the event they decided to terminate the employee over performance issues relating to communication differences that may be “cultural” in nature.
The employer refuted the allegations, arguing that it terminated the employee following failure to improve performance. Some of the employee’s team members had complained about her inability to mentor them, and she had also failed to complete a proposal for a potential client in time to meet the deadline.
As a result, she had been placed on a performance improvement plan. This set out the issues and required a follow-up meeting to assess progress, noting that failure to improve may result in disciplinary action. The employee was let go after further incidents.
Employer was insensitive toward Chinese people
The HRTO adjudicator found that the emails displayed insensitivity and disrespect toward Chinese people and noted:
“Race-based discrimination will usually be the result of subtle unconscious beliefs, biases, and prejudices, which one does not expect to be displayed openly.”
The employee claimed that management incorrectly concluded she had poor interpersonal skills based on Chinese stereotypes and concocted her performance issues to build a case for termination.
Employer presented a credible non-discriminatory explanation for its conduct
However, the adjudicator decided that the evidence showed that the employer had concerns about performance before the T-shirt incident.
The issue was whether race was a factor in the termination, and the adjudicator determined that it was not, deciding that the evidence confirmed the employer had a credible non-discriminatory explanation for the termination. The explanation was that the employee needed to fulfill her role as a senior associate, specifically leading the team and mentoring other associates. The adjudicator pointed to the contractual term, performance improvement plan, and other evidence of ongoing performance issues.
As a result, the HRTO dismissed the employee’s discrimination and harassment claim.
Contact Toronto Employment Law Firm Haynes Law Firm for Guidance on Performance Management and Human Rights Claims
Paulette Haynes and her team at Haynes Law Firm assist employers with their employment law needs, both contentious and non-contentious. The firm helps prepare progressive discipline policies to minimize risk and represents employers in disputes arising from termination and discrimination allegations. Haynes Law Firm also works with employees, ensuring they receive the advice they need if they have been accused of poor performance by their employer or subjected to discrimination or harassment in the workplace. Please contact us online or by phone at 416.593.2731.