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The question
I am 58 years old and I have been working in the same position at the same company for more than 20 years. I’ve always had great performance reviews, but in my last review, I was told that my work had not been up to par and they were putting me on a performance improvement plan. Nothing in my work or behaviour has changed, as far as I can tell. I believe they’re trying to lay the groundwork to fire me. What should I do to protect myself if I believe this might end up happening?
The first answer
Susanna Quail, partner, Allevato Quail & Roy, Vancouver
There are a few things you can do to protect yourself. The most important is to participate in a way that does not give your employer grounds to dismiss you. Engaging in a defensive or combative way risks doing just that. Approach the process with an attitude of cooperation and willingness to improve, even if you don’t feel that way in your heart. Participate eagerly in the development and implementation of the performance improvement plan. Ask plenty of questions and make sure you understand as clearly and specifically as possible what aspects of your performance are an issue and what the expectations or targets are. Another important action is to document everything: take notes of all conversations and follow up on all oral discussions by email to create a paper trail. This will be crucial if you do end up in a legal fight about termination.
If it gets more complicated, though, you would be well served to get legal advice. After 20 years, you could be entitled to significant severance pay (depending on various factors including the terms of your employment contract).
One additional thing to consider: unionize your workplace. Joining a union is the best way to protect job security. Employers can terminate the employment of non-union employees at any time, as long as they pay severance. Employers can only terminate unionized employees if they have just cause or if there is a lack of work and therefore genuine lay-offs. An employer can terminate a unionized employee for performance issues, but the employee is entitled to a fair process and opportunities to improve before the employer can resort to termination. You’ll have a lot more protection from an arbitrary or bad-faith termination if you are in a union.
The second answer
Balraj K. Dosanjh, partner, Cavalluzzo LLP, Toronto
You can take some comfort in the fact that it is a high bar for employers to meet to rely on “just cause” for terminations. When it comes to performance issues, just cause may be established if an employee repeatedly failed to deliver satisfactory work or deliberately failed to meet performance standards, after they were provided with a fair opportunity to improve and were warned of the consequences.
If your employer has genuine concerns about your performance, they are entitled to manage these concerns by using a performance improvement plan. It is important you understand the nature of their concerns and if that has not been made clear to you, you should ask your employer to provide you with sufficient information to understand which aspect of your performance requires improvement. You should also understand which steps you need to take to correct the performance issue. The performance plan should identify areas of improvement, specify performance objectives, set a timeline for reassessment and be reviewed by both parties.
In this case, as this is the first time the employer has identified performance concerns, it is best to keep the communication lines open, take the performance plan seriously and make a genuine effort to meet the outlined goals. You should also document your progress and the information you received from your employer.
If you feel the employer’s concerns are not genuine and remain concerned about this after probing for more information, you should consult a lawyer. It would not be proper, for example, for your age to be a factor in the employer’s conduct.
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