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For Employers – Take the Time to Conduct Thorough and Thoughtful Performance Reviews

Posted On: January, 21 2015

Does your company conduct pro forma performance reviews? Do your non-unionized employees sometimes receive group salary raises in the standard course when their individual performance does not merit a raise?

Performance reviews are important human resources management tools. Unfortunately, performance reviews are also one of the many administrative tasks that do not directly produce any revenue. As a result, it is all too often the case that performance reviews are rushed and superficial – often to the detriment of the employer.

For example, although it may take only 5 minutes to check off “satisfactory” in every job evaluation category, it could take significantly longer to critically reflect on an employee’s true performance. We routinely see performance reviews completed by managers who were effectively guessing what comment to make on the review form. Wherever a manager completing a performance review does not have the best information available, it is advisable to go and speak with other supervisors and managers who could provide better information. A thorough performance review takes work, but the work will be appreciated if the employee who is the subject of the review is dismissed at a later time and the performance review becomes evidence in a legal proceeding.

We also see performance reviews where the reviewer has checked off the required boxes, but has not taken the time to provide written comments expanding on the employee’s performance. Even worse, we see examples where the written comments do not correlate with the check boxes. For example, the check boxes are all marked “satisfactory” or “good,” but the written comments are overwhelmingly negative. A performance review that contradicts itself will not be good evidence for the employer.

The following passage from Lambe v. Irving Oil Ltd., 2002 CanLII 22789 (NL SCTD) makes the point that careless performance reviews and standard course raises can effectively undermine a case for cause dismissal:

[109]      As well, the company, by waiting 27 months to act on policy breaches is estopped from relying on these alleged breaches. When Smith told MacDonald to ignore these alleged breaches of policy, Irving cannot now come to court and allege these as grounds for dismissal.  I refer to the case of Tracey v. Swansea Construction Co. Ltd., [1965] 1 O.R. 203 and Holloway v. The Town Council of Marystown (1986) 58 Nfld. & P.E.I.R. 214, page 231-232.  See also The Law of Dismissal in Canada, supra, Chapter 6 at page 129 where the author quotes as follows:

“Similar to providing the employee with a raise, providing an employee with a positive performance review or a letter of praise will have the general effect of condoning performance.”

[110]      In this case Mr. Lambe was given a performance review as late as 1996 between February and May, just four months prior to being fired.

This was a case where the employer was not satisfied with the employee’s performance, yet proceeded to not pay sufficient attention to their performance review process and was left with a series of positive or satisfactory reviews which contradicted their allegations in support of termination for cause.

Accurate performance reviews are not only useful for alleging cause, but are also very important in defending human rights claims.  Performance reviews can become a major issue in human rights cases where an applicant is alleging that he or she was dismissed for a discriminatory reason.  Where the applicant can show a prima facie case that the dismissal was discriminatory, the burden shifts to the respondent to prove that it had a non-discriminatory reason (short of cause) to dismiss the person.  If the performance reviews are inconsistent or largely positive, it will be that much harder for the respondent to prove its non-discriminatory reason for dismissal.

When completing a performance review, it is important to keep in mind that a positive performance review or a salary increase effectively confirms the employee’s good performance for the period in question.

 

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