Employees often have questions about how PIPs are used in Ontario workplaces. They have concerns about how to handle a PIP if they are placed on one and what that can mean for their career.

This blog seeks to offer some assistance. We will look at what is a PIP, what an employee should do if they are subject to a PIP and what happens if the employee is fired because they failed to meet the standards set by the PIP.

What is a Performance Improvement Plan or PIP?

A Performance Improvement Plan (often called a “PIP”) is a way in which some employers decide to address issues related to an employee’s performance in the workplace. The key points or aspects of a PIP is generally set out in a document.

The PIP will generally set out the following:

1. What are the specific issues related to the employee’s workplace duties or responsibilities, productivity or work-related performance targets that an employee has failed to reach.
2. What are the goals that the employer wants the employee to achieve related to the same issues as set out above.
3. What are the procedures or processes that the employee should follow to achieve those goals.
4. What are the timelines to achieve those goals or by what deadline should the employee achieve those goals related to workplace responsibilities or work-related performance targets.
5. What will happen if those goals are not met by the employee in the timeline set by the PIP.

Once an employee is subjected to a PIP there will be a period of time to implement the PIP in the workplace. Once that period of time has elapsed, the employer will generally have a meeting with the employee to discuss the PIP and to ascertain if the goals of the PIP has been met and evaluate the employee’s overall performance.

Sometimes a PIP is sort of a “first step” in the discipline process (but this is not always the case). Once a PIP has been implemented or after it has been implemented, the employer may go on to progress to more traditional forms for discipline such as a warning, suspension or even termination if it has been determined that the employee has failed to meet the goals set in the PIP.

What should an employee do if they are subject to a PIP?

The employee should remain calm and understand that a PIP does not mean that they have been fired for even that the employee is going to be fired. The PIP is simply there to help an employee improve and meet certain requirements or expectations that the employer has related to the employee’s job.

However, there are cases where a PIP is used improperly by an employer or even used in a contrived or manipulative fashion to create an atmosphere of bullying or harassment or bad faith against an employee. If an employee has any concerns related to those issues, they should approach an employment lawyer for assistance so that they can understand what their employment law rights are related to their own unique situation.

Here are some indications that the PIP may not be used properly by an employer or that the PIP is being used unfairly against an employee:

1. The PIP was implemented in sudden fashion where there was no prior warning given to the employee that the were any issues with the employee’s work performance or job-related responsibilities.
2. The PIP is only implemented in certain circumstances with only certain employees even those the issues with performance are the same (the employee is a “target”).
3. The PIP was only implemented after the employee made a complaint regarding something in the workplace such as bullying, discrimination or harassment.
4. The expectations contained in the PIP are vague not easily understood.
5. The PIP set outs performance targets or expectations that are unrealistic or very difficult for the employee to reach.
6. The PIP sets out timelines for performance goals that are too short and, as such, the employee could not meet those expectations in the time periods set out in the PIP.
7. The employer refuses to offer any clarifications or assistance when the employee has questions or concerns related to the PIP.

However, in each case, an employee should ensure that they review the PIP, ask their employer for help or clarifications if needed, and document communications related to the PIP if possible. The employee should not agree to “sign” or “agree” with the allegations contained in the PIP if they do not agree that with those allegations. An employee can agree to a PIP without having to agree with the allegations contained in the PIP. Obviously, the more the employee feels the PIP has been implemented in an unfair fashion, the more crucial it will be for the employee to document the process of the PIP.

What happens if the employee is fired because they failed a PIP?

An employer can terminate an employee due to the employee’s inability to follow a PIP, and this termination may with be with cause. However, the fact that the employee fails to meet the expectations set out in a PIP does not necessarily allow the employer to do whatever they please, including terminating an employee for cause as this determination is a fact-driven analysis.

An employer who wishes to terminate an employee because of a failure to perform at a certain standard outlined in the PIP must clearly communicate the standard to the employee. Failure to do so will render the PIP useless and the employer will not be able to rely on the PIP in support of the employee’s termination for cause. Secondly, the standard set out in the PIP must be reasonable. Employers cannot set an unattainable performance standard in a PIP only to use the employee’s inability to meet that standard in support for termination with cause.

Further, a PIP cannot be discriminatory. Ontario employees are entitled to various protections pursuant to Ontario’s Human Rights Code, 1990 (“Code”). A PIP typically triggers the Code when an employee is expected to perform at a certain level in spite of being limited by some sort of disability and without the benefit of reasonable accommodation from their employer. In Ontario, employers have an obligation to accommodate employees to the point of undue hardship. Failure to accommodate the employee and, worse, actually dismissing the employee, could increase the employer’s risk of litigation and result in significant liability to the employer.

Finally, even if the employer’s PIP is found to be fair, reasonably objective, non-discriminatory and the employee was given every opportunity to improve their performance, the employee may still be entitled to statutory termination pay and severance pay under the Employment Standards Act, 2000 (“ESA”). The only way for an employee to be deprived of their minimum statutory entitlements when a PIP is involved is if the employee’s conduct amounts to willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer. An employee who is unable to meet certain performance standards, while trying to meet them, will not necessarily fall within the aforementioned categories. As such, even though the employee may be deprived of their right to reasonable notice or pay in lieu thereof at common law, they will still be entitled to various forms of compensation payable under the ESA.

How can Zeilikman law help?

Approaching an employment lawyer is necessary for employees when there are issues surrounding PIPs. The legal analysis of PIPs and wrongful dismissal is fact driven. Employment lawyers like the ones at Zeilikman Law can assist employees by reviewing the facts surrounding the matter at hand and help them determine what the next best steps are to take given what the law sets out about PIPs.

If you would like to read more about PIPs and other related employment law issues, please take a look at our blogs entitled for The Truth About Performance Improvement Plans or “PIPs” and Progressive Discipline in Ontario Workplaces more information.

Employers and employees can contact our office at (905) 417-2227 or online here to schedule their own confidential consultation with Zeilikman Law.