I have been put on a Performance Improvement Plan (PIP) –  What now?

When an employer puts an employee on a performance improvement plan (PIP), it can cause considerable distress and anxiety for the employee due to the uncertainties that come with a PIP. The feeling of anxiety and distress can be legitimate as the employer has expressed dissatisfaction with the employee’s performance and the probability of termination may loom large. However, understanding what a PIP is, what it entails, and the potential consequences of a PIP can alleviate many of the concerns and confusion that an employee may experience.

What is a PIP?

First and foremost, a PIP is not a disciplinary action. Neither is it a punishment. It is an opportunity given by the employer to the employee to improve his/her performance. It is, nonetheless, a formal way of expressing concern by the employer over the performance of the employee and therefore, it should be taken seriously. A PIP will generally outline:

1. Expectation – the expectations of the employer for the employee, which are (ideally) specific, measurable, achievable, relevant, and time-bound;
2. Timeline – a duration within which the employee is expected to demonstrate the improvement;
3. Action steps – the specific actions the employee needs to take to address the performance issues. This may include training, coaching, additional support, or other interventions as deemed necessary;
4. Support – support and resources that the employee shall have access to for achieving the expected improvement;
5. Feedback and consequences – feedback on improvement and consequences for failing to achieve the expected improvement targets, which can include taking disciplinary action or even termination, depending on the facts and circumstances of the case.

The objective of a PIP is not only to highlight performance shortcomings but also to give the employee a meaningful opportunity to improve performance. It should be approached as a constructive and collaborative process targeted at helping the employee develop the necessary abilities and meet the employer’s expectations.

Risks faced by the employee

An employee under a PIP would naturally be concerned about being terminated if they fail to achieve the performance expectations of the employer. However, in Alberta, it is difficult for employers to dismiss employees for alleged poor performance. In general, courts do not readily accept allegations of poor performance as sufficient reason, or just cause, for terminating an employee’s employment contract. Without flagrant violations of employment standards or job responsibilities, it is difficult to establish just cause for termination.

However, that does not mean that the employer cannot terminate the employment relationship with the employee. An employer always has the right to terminate the employment relationship at any time, provided that the employee is provided with a reasonable severance. (Some reasons, of course, are not allowed on human rights grounds; but that is a topic for another day!) Therefore, even if there is no just cause, an employer may still terminate the employment contract without cause upon paying sufficient severance. The sufficiency of the severance will depend on various factors such as the age, length of service, and job responsibilities of the employee. In certain cases, where the employment contract specifically limits severance, the amount may be limited to the statutory minimum.

Apart from the risks of termination, an employee’s growth within the organization may also be impeded due to the record of the PIP. The employee may also be subject to further scrutiny and monitoring going forward. The negativity associated with a PIP can also cause embarrassment among peers and this can have a negative impact on the morale and self-esteem of the employee.

Duties of the employer

The employer must act reasonably with the employee throughout the duration of the PIP. The scope of the improvement must be clearly defined and communicated to the employee so that there is no uncertainty with respect to what the employee is required to achieve. As mentioned earlier, a PIP is meant to be a collaborative process wherein the employer assists the employee with guidance and resources to achieve the expected target. The employer should provide periodic feedback to allow the employee to track progress and achieve the desired improvement.

A PIP is not an opportunity for the employer to set the stage for dismissing an employee without severance. An employer that puts an employee on a PIP aimed to justify termination with cause and to deprive the employee of severance can be liable to pay additional damages for bad faith and dishonesty in addition to due severance. Therefore, employers are expected to be fully transparent and honest with employees throughout the PIP process.

Furthermore, if the employee is stigmatized, unfairly criticized, or denied the necessary resources or guidance for achieving the targets of the PIP, there might be grounds for claiming constructive dismissal against the employer.

What you should do?

First and foremost, it is important for an employee who has been put on a PIP to remain positive and focused. The employee should communicate his/her commitment to progressively improve performance to meet the expectations of the employer, so long as they are legitimate. Nevertheless, the employee should also remain vigilant against any undue attempt by the employer to abuse authority or improperly use the PIP with an ulterior motive. In any event, an employee should consider taking the following steps:

• Seek clarification – the employee should fully understand the specific areas of development that the employer expects of the employee. This exercise will often reveal if the employer’s actions are legitimate or improper. If the allegations are vague and unspecific, this would be a red-flag.
• Action plan – the employee should work with the employer to set specific targets with timelines and be proactive in implementing them.
• Feedback – request periodic feedback on performance and preserve documentary evidence of such feedback.
• Seek support – the employee should not be shy about requesting assistance with achieving the targets if faced with roadblocks.

If you have been put on a PIP and have concerns about the legitimacy of the PIP, require assistance with compliance with the expectations, or wish to learn more about your rights and responsibilities, our employment lawyers at Osuji & Smith would love to help and guide you.

CONTACT OSUJI & SMITH CALGARY EMPLOYMENT LAWYERS NOW

Author: Imtiaz Hafiz