Performance Improvement Plans | Employment Law Show TV – S4 E4

Episode Summary

PERFORMANCE IMPROVEMENT PLANS, severance pay rights, workplace bullying and harassment, and more on Season 4 Episode 4 of the Employment Law Show with employment lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP.

Watch above to discover your workplace rights and learn everything you need to know about employment law in Ontario, British Columbia, and Alberta, on the only employment law show on both TV and radio in Canada.

Episode Notes

Employee placed on unpaid suspension

I was accused of workplace bullying and harassment by a coworker. While the company investigated the claim, I was placed on an unpaid suspension pending the outcome of a workplace investigation. Two weeks went by without any results.

A suspension without pay is actually illegal for most people. The company does not have a right to suspend employees without pay. They have a right to suspend with pay, as a disciplinary measure, as long as it’s justified. If a company suspends you without pay, that is actually a constructive dismissal. You do not have to accept that.

They also can’t put you on a leave as a form of discipline, while they conduct a workplace investigation to investigate the harassment to determine if you should be disciplined. Never accept a suspension without pay, or you will be giving them the right to do it again.

Segment starts at 2:14

CALL: Employee returning from maternity leave fired without cause

I was due to return to work from my maternity leave next week. However, I was called in for a meeting last week about the expansion of the company. This meeting turned out to be my termination meeting, where I learned that my temporary fill-in is now in my role full-time. I was fired without cause. I worked there for 16 years.

What your employer did is illegal. An employer cannot decide that they want to keep the replacement of someone who is on maternity leave. Their obligation is simple: they have to let you take the leave, and then they have to take you back to the same job, the same duties, and the same pay as before you took the leave. What your employer did is a human rights violation and a violation of the Employment Standards Act. You would be owed severance, and probably you would receive human rights damages.

Use the Pocket Employment Lawyer for Human Rights Violations here.

Segment starts at 4:30

Employee’s harassment complaint was ignored

I am being bullied relentlessly by a new coworker who joined us a month ago. When I approached my manager about his behavior, I was told that they were “personality quirks” that we should just ignore. I’ve enjoyed my job for the last 4 years, but I feel like my only option now is to quit.

Workplace harassment is a serious issue. You have a right to a healthy and safe work environment. If your employer violates that right, that is illegal. It could potentially be a human rights violation. Since your employer has done nothing to fix the situation, you could treat that as a constructive dismissal.

Segment starts at 8:05

Performance Improvement Plans: Everything You Need to Know

1️⃣ What is a Performance Improvement Plan?

A performance improvement plan (PIP) is a plan put in place to help an employee that is underperforming improve. Usually, a PIP outlines the reasons for the plan, the goals of the plan, and what the company is going to do to help you achieve those goals, as well as a timeline. It’s important to note that PIPS are not always legitimate.

Segment starts at 11:26

2️⃣ What should an employee do if they disagree with the Performance Improvement Plan (PIP)

If your PIP is not accurate, you have to say so. Send an email, and provide information or proof of why their statements in the PIP are inaccurate or unfair. By speaking up, you’re going to make it that much harder for the company to rely on the PIP if they want to later let you go.

Segment starts at 12:35

3️⃣ If an employee disagrees with a PIP, but decides not to protest it, what can happen?

If you are silent, you will be seen to agree with the PIP. The problem with that is, if down the road the company wants to let you go, and points to the PIP as proof of poor performance, it’s going to be difficult at that point to contest the PIP. If you want to make it harder for your employer to let you go, put your objections to the PIP in writing.

Segment starts at 13:43

4️⃣ If an employee suffers from extreme stress while on a PIP, can they take a medical leave?

Yes, they can. If an employee is experiencing workplace stress, due to the PIP or otherwise, and you don’t think you can continue working and your doctor agrees, you can take a medical leave. You don’t have to tell the company why, as long as a doctor says you can’t work, you can go off work. The company cannot use your medical leave against you – that would be a human rights violation.

Segment starts at 14:51

5️⃣ If the employee fails the Performance Improvement Plan, can the employee be let go for cause, without severance pay?

Employers will often try to put an employee on a PIP and then let them go for cause. That is not allowed. The fact that you may not have had good performance or that you were put on a PIP, does not mean you can be let go for cause. The company would have to show you did something so awful, that you were deliberately doing a bad job. Bad performance is not a reason for a just cause dismissal.

Segment starts at 16:21

6️⃣ At what point should somebody facing a PIP contact an Employment Lawyer?

As soon as you are put on a PIP that you don’t agree with, you should contact an employment lawyer right away.

Segment starts at 17:42

CALL: Severance for a one-year employee

My girlfriend worked as a sales supervisor for one year. Immediately after a new district manager was hired, she was terminated. The reason given was that my girlfriend was “sitting on a counter and swinging her feet”! She was only given one week’s pay. Was that enough severance?

There’s nothing illegal about letting her go for that reason, as long they provide her severance. The question here is how much is she owed? One week’s pay is not enough. According to the Severance Pay Calculator she should be owed four to six months’ pay.

Segment starts at 18:40

CALL: Employmee misclassified as a contractor

My friend’s company is downsizing and no longer requires her services. She worked there for a little over a year. They say that because she was an independent contractor, she’s not entitled to any severance pay. What’s your take on that?

Individuals are misclassified as independent contractors all the time. If you work regular hours at the same location, you are an employee. The law determines that if you act like an employee, you are an employee. And as an employee, you have rights to vacation pay, holiday pay, overtime pay, and of course, severance. It’s very likely your friend is an employee, and as an employee is owed severance.

If you want to find out if you have been misclassified as an independent contractor, go to our Pocket Employment Lawyer.

Segment starts at 22:23

Employee denied long-term disability faces termination

After being off work for a month due to extreme stress I had no choice but to return after my long-term disability claim was denied, despite support from my doctor. Another employee just told me that they overheard a management meeting where my termination was discussed. What should I do?

If you’ve been cut off from your long-term disability before you were ready to go back to work, that is illegal. We need to address this immediately. If a doctor says you cannot work, it begins and ends there.

Beyond that, if you are back to work and you need some accommodation, you cannot be let go because of that reason. That is illegal. It does sound like your termination was contemplated because you took a medical leave. Severance would be owed to you, but there could be human rights damages as well.

Segment starts at 25:13

Employee denied severance after 8 years of service

I just found out that our office is closing in one month. I won’t receive any severance, even though I’ve been working at that location for the past 8 years and the company will still operate two other offices in the province. Shouldn’t I receive something?

Absolutely, you should receive something. If you’ve been let go with one months’ notice, that months’ notice does count towards your notice requirement. But if you’ve been there for eight years, you could be owed 10 months of notice, which means you’re owed the difference between the one and 10 months. The fact that your company closed a location, does not mean that you are not owed any severance. They still have to pay you. Contact an employment lawyer to find out how to get what you’re owed.

Segment starts at 27:08

Next Episode: Employment Law Show S4 E5 – Can My Employer…

Previous Episode: Employment Law Show S4 E3 – Termination of Employment (Pop Quiz)