Can I be fired after a bad performance review in Ontario?

In Ontario, non-unionized workers can be fired after a “bad” performance review — even if their employer’s expectations are unreasonably high.

This is known as a termination without cause. Companies can let you go for any reason, as long as:

• You are provided full severance pay
• The reasons for your dismissal aren’t discriminatory

However, it’s very unlikely that your employer could fire you for cause following a negative performance review, which would prevent you from receiving a severance package or accessing Employment Insurance (EI) benefits.

This type of dismissal is considered the “capital punishment” of employment law. It’s reserved for the worst kinds of workplace offences, such as serious insubordination, theft, or assault.

LEARN MORE
• How to calculate severance pay
• Severance for provincially regulated employees
• Rights to severance for federally regulated employees

Performance Review vs. Performance Improvement Plan

Many non-unionized workers in Ontario believe that a performance review and a Performance Improvement Plan (PIP) are the same. However, this isn’t true.

Performance reviews typically happen once or twice a year. During the review, the employee and management usually discuss:

• How well the worker is performing their job duties
• Whether the individual will be receiving a year-end bonus

Unlike a routine performance review, staff are usually required to complete a PIP if the company doesn’t believe they are doing their job well.

• Example: A copywriter in Toronto failed to reach their content targets in November. On Dec. 8, the company required the worker to complete a Performance Improvement Plan by Jan. 15.

It’s not uncommon for companies to use PIPs to justify firing staff for cause.

Businesses will argue that workers shouldn’t receive a severance package because they didn’t complete it successfully.

WATCH: Employment lawyer Lior Samfiru breaks down everything you need to know about PIPs on an episode of the Employment Law Show.

In Ontario, employers don’t automatically have the right to fire you, especially for cause, if you fail to meet the requirements outlined in the PIP.

Companies often set unrealistic goals that are extremely difficult to achieve or don’t give staff the proper support to improve their work.

I was fired for cause due to “poor job performance”, what should I do?

When non-unionized employees in Ontario are fired for cause, they are usually still entitled to severance pay because they don’t meet the requirements necessary for this type of dismissal.

To justify terminating you for cause, your employer must prove:

• Progressive disciplinary measures were applied
• A lesser punishment wouldn’t be acceptable

If you are fired following a “bad” performance review, or for failing your company’s PIP, contact an experienced Ontario employment lawyer at Samfiru Tumarkin LLP immediately.

We can determine if this type of dismissal was appropriate in your situation and help you secure the compensation you deserve if it wasn’t.

LEARN MORE
• Wrongful dismissal in Ontario
• Do I have to look for a new job after getting fired?
• Can my employer hire for my position if I haven’t been fired yet?

Do performance reviews affect my severance entitlements?

Performance reviews don’t affect how much severance pay non-unionized workers in Ontario are entitled to if they are fired or let go.

If your employer can’t justify firing you for cause, you are still entitled to full severance, which can be as much as 24 months’ pay.

SEE ALSO
• Executive and C-suite severance pay
• Severance pay in a recession

Can my employer make major changes to my job after a performance review?

The short answer is no. Non-unionized employees in Ontario can refuse significant adjustments to the terms of their employment.

Large modifications, such as a demotion, longer shifts, or reduced pay, are illegal.

When negative changes are made to your job without your consent, and your employer doesn’t have grounds to fire you for cause, it’s very likely that you could treat the move as a constructive dismissal.

LEARN MORE
• Can your employer make changes to your job in Ontario?
• Changes to your employment in B.C.
• What happens when your job is changed in Alberta

In this situation, the law allows you to resign and pursue full severance pay.

However, you shouldn’t quit your job before speaking with an experienced employment lawyer at Samfiru Tumarkin LLP.

We can confirm that you have been constructively dismissed, assess your legal options, and ensure you receive the compensation you are owed.

LEARN MORE
• Do I get severance if I quit?

My employer is pressuring me to quit after my performance review, what should I do?

Your employer can’t pressure or force you to resign — regardless of how disappointed they are with your job performance.

If your boss is influencing you to step down following a negative performance review, document their attempts. This includes keeping any letters, emails, or text messages that show how your company is pressuring you to quit.

Unfortunately, some employers can be extremely forceful and aggressive that staff resign because they didn’t feel they had another option.

If you are ultimately forced to quit your job for any reason, contact Samfiru Tumarkin LLP as soon as possible.

In addition to severance pay, you could be owed compensation for any damages associated with the end of your employment.

SEE ALSO
• Employment Law Show: Facts about forced resignations
• Employment Law Show: How to handle a bad boss

I can’t complete some PIP requirements because of my disability, what should I do?

If your disability prevents you from completing any of the requirements outlined in the company’s PIP, inform your boss immediately.

Under Ontario’s Human Rights Code, employers are legally obligated to assist non-unionized staff who can’t perform their job duties due to a disability (either physical or psychological), religious reasons, or other constraints.

As part of their duty to accommodate, your company might have to:

• Change your job requirements
• Provide someone to help you complete your tasks
• Make changes to the shift itself

If you believe that your employer hasn’t properly fulfilled their duty to accommodate, speak with an experienced employment lawyer at Samfiru Tumarkin LLP.

We can help you secure the compensation that you are entitled to through a constructive dismissal claim as well as a human rights complaint.

LEARN MORE
• Employment Law Show: Duty to accommodate in Canada
• Disability in the workplace
• Long-term disability claims: Your rights

Filing a human rights complaint

If your employer doesn’t properly fulfill their duty to accommodate, you should file a human rights complaint to the Human Rights Tribunal of Ontario (HRTO).

The HRTO is responsible for dealing with complaints pertaining to the province’s human rights legislation.

Successful human rights complaints can result in compensation — and potentially reinstatement — for employees who experience harassment or discrimination at work.

SEE ALSO
• HRTO orders Imperial Oil to pay $120K to worker it didn’t hire
• Can unionized employees bring forth a human rights claim?
• HRTO: ‘Miscarriage is a disability’

Lost your job? Speak with an employment lawyer

If you are fired or let go for any reason, or believe that your human rights have been violated, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in Toronto and Ottawa, representing clients across Ontario, can review your situation, enforce your rights, and ensure that you receive the compensation you are owed.