Ontario Municipal Human Resources Association

The primary objective of performance management is to set expectations and support an employee to improve. Well implemented performance management can improve operations, reduce disputes and strengthen the employer’s position if a wrongful dismissal or other claim arises. However, poor performance management can create significant legal risk. Even straightforward feedback can prompt allegations of harassment or discrimination when delivered too abruptly, while an unfair or poorly documented performance management process can prevent an employer from relying on legitimate performance concerns to justify termination.

A Performance Improvement Plan (“PIP”) is the final step in a performance management process, following appropriately setting expectations, coaching, providing training and supports. As such, before presenting a PIP to an employee, municipal employers should consider the following questions to ensure that they have taken the appropriate steps prior to implementing the PIP:

1. Are expectations clear? A PIP should not be the first time an employee learns what is expected. Communicate expectations in writing at the outset of employment, for example by incorporating a job description and expectations in the employment contract. Reiterate expectations (ideally in writing) whenever responsibilities change, projects are assigned and during regular reviews.
2. Has the employee received prior coaching? A PIP should follow timely feedback and a reasonable opportunity for the employee to improve, not serve as the employee’s first notice of deficiencies. During informal coaching, document the expectations discussed, examples reviewed, guidance provided and timelines for improvement. Without this step, employees may view the PIP as abrupt, punitive or differential treatment, particularly if comparable concerns involving others were handled informally.
3. Is there a duty to inquire? Consider whether a Human Rights Code-protected ground may be affecting performance and triggering a duty to inquire about accommodation. An employee may mention anxiety, disability-related needs or childcare challenges without using legal terminology or formally requesting accommodation. If such information arises (especially during performance discussions or coaching) consider whether accommodation or other support is required.
4. Are there specific examples? Provide meaningful particulars showing how where the performance is lacking and how the employee must improve. Avoid vague assessments of attitude, conduct or overall performance, which may be misconstrued as evidence of discrimination or unfair treatment. Concrete examples help employees understand and address concerns. The Ontario Court of Appeal has considered a failure to provide meaningful particulars during a critical performance review as a factor supporting a constructive dismissal claim.
5. Are the concerns substantiated? Verify performance concerns rather than relying on untested accounts. For example, a formal PIP should not be based on assumptions about what happened and rely solely on another employee’s claim that a colleague is not pulling their weight. Give the employee a fair opportunity to respond and explain. Courts have described a performance review containing unsubstantiated assessments as harsh, vindictive, malicious and reprehensible.
6. Have comparable employees been treated consistently? Review how similar performance concerns have been addressed. Differences in approach may be justified but identify and document the relevant distinctions. Consistency reduces allegations of discrimination, reprisal or arbitrariness.
7. What must be communicated? A well-drafted PIP should identify unmet expectations, specific examples, prior coaching, required improvements, available supports, review dates and possible consequences. Employees should clearly understand that failure to meet the requirements may result in discipline, up to and including termination.
8. Are the outcomes clear, measurable and reasonable? Explain what improvement looks like and how it will be assessed. Goals and timelines should be objective, achievable and tied to the identified concerns. They should not be arbitrary timelines or designed to support a later termination.
9. How will the employee be supported? A PIP should be corrective, not punitive. Identify practical supports such as coaching, training, resources, regular check-ins or clarified priorities. The objective is to help the employee meet—and ideally exceed—reasonable expectations.
10. How will improvement be monitored? Set a timeline and schedule regular check-ins to ensure progress, while allowing the employee the full amount of time stated in the PIP to demonstrate improvement. Managers should assess progress objectively and specifically. If improvement is insufficient, they should provide concrete examples explaining how and why.

A well-executed PIP can support both the employee and the organization in meeting their goals. If performance does not improve, having thought through these questions and documented your steps and rationale appropriately can inform next steps, including whether discipline or termination is warranted, and help defend against claims of constructive dismissal, discrimination or harassment.

Written by: Emily Sheppard, Turnpenney Milne LLP