HHS Worker Fired Over Performance: HR Reporter Interviews Employment Lawyer

A medical laboratory technician who worked at Hamilton Health Sciences in Ontario was dismissed due to poor performance and an arbitrator recently upheld the decision due to implemented performance improvement plans.

Jon Pinkus, an Ontario employment lawyer and Partner at Samfiru Tumarkin LLP spoke to Canadian HR Reporter on the outcome of the decision and dismissal.

“It’s important to understand that ‘non-culpable conduct’ doesn’t mean that someone hasn’t done anything wrong, it just means they haven’t done it wrong on purpose,” said Pinkus. “So this is someone who didn’t intentionally act contrary to her job duties, but was just totally unable to do the job in any sense.”

Pinkus went on to describe the purpose behind performance improvement plans and how they should be carried out.

“What [HHS] did correctly is they were issuing the plans in good faith, they were based on bona fide concerns, they were giving the worker the requisite support to be able to accomplish the improvement plans, and there were several chances given to remedy the behaviour,” said Pinkus. “A lot of pitfalls that I see with performance improvement plans are because they’re not issued in good faith.”

Pinkus cautioned that the decision was upheld ultimately due to the nature of the employee’s job and likely their short service.

“The result may have been very different if we had an employee with longer service – the facts are extreme with a short-service employee with just about the most serious non-culpable conduct one could imagine,” Pinkus explained. “You could change any one of the variables – the years of service, the nature of the job, the safety-sensitive aspects, the documentation – any one of those things could have easily changed it to a termination without cause even under the common law standard, or in this case under the collective agreement.”