Performance Review Lawyers Calgary
Employers are not legally obligated to conduct performance reviews of employees. However, in addition to their use as a valuable employee feedback tool, performance reviews can be used in conjunction with an employer’s progressive discipline protocol. Where an employee has not been subject to any performance reviews during their tenure of employment, it might be difficult for an employer to make out a case for just cause. In this respect, a negative performance review will not necessarily constitute as a step in a progressive discipline protocol of escalating warning letters, but can serve as a foundational document that sets the stage for further action.
Employers should take care to note that a negative performance review may uncover issues related to a protected ground of discrimination in respect of the employee. For example, it may become apparent through the performance review process that the substandard performance of an employee is due to a disability such as an addiction. In that case, the employer may owe the employee a duty of accommodation up to the point of undue hardship. Also, in this situation, the performance review must be altered to remove the reference to the substandard performance given its root cause.
Employers should take care to ensure they are conducting performance reviews in a fair manner and in good faith. An Ontario court recently awarded a government employee damages for a discriminatory performance review that failed to take into account her known health issues. The arbitrator found the employer should have loosened its performance standards and awarded the employee $25,000.00 under the Canadian Human Rights Act. In some circumstances, it might be possible for an employee to pursue a constructive dismissal claim for a negative performance review. This would likely be a rare situation but it is foreseeable if the employer is found to have conducted the performance review in bad faith with an aim to have the employee quit. In some situations, a negative performance review could also be said to constitute harassment by the employer.
Employee performance reviews can serve a variety of purposes in your company. Care should be taken that they are being done fairly and information gleaned from such assessments (as in the example of an employee addiction or disability issue) should be dealt with in an appropriate fashion. Cashion Legal can advise your company about how to approach ongoing performance reviews and performance management protocols for your employees.
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