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Employee refusal of warnings or performance reviews

By Yosie Saint-Cyr, LL.B., Managing Editor at HRinfodesk.com---Canadian Payroll and Employment Law News, April 2008

Our latest HRinfodesk poll asked participants What should you do if an employee refuses to sign an evaluation or written warning? The correct answer was selected by the majority of respondents (96.39%) which is to record their refusal/disagreement in the document. Taking this approach can come in very handy in potential litigation. It might sound obvious, but on more than one occasion, legal experts trying to litigate a case have stated that they've seen a lot of wrongful dismissal suits where the employee was able to claim that he never saw a warning or performance document because it was unsigned. If you follow this simple procedure, you'll avoid a lot of problems if you have to terminate an employee for cause.

Below is a breakdown of the results of the poll and commentary on the topic of employee refusal of warnings or performance reviews, including common law requirements and policy considerations.

Overview of common law requirements

A performance review is the employer's mechanism to monitor the employee's performance and provide positive feedback. A formal assessment and/or appraisal of an employee's performance mean a written assessment and/or appraisal by the supervisor of how well the employee has performed the employee's assigned tasks during a specified period in the past. If, during an employee's assignment, a concern arises with respect to the employee's performance, the employer should bring those concerns to the attention of the employee in a timely manner. The employee should be given a reasonable opportunity to bring the performance up to the performance standard.

Those conducting performance reviews have the responsibility to ensure that they are prepared for review meetings with employees. Part of their preparation should involve gathering feedback and information from a variety of sources in order to ensure that their review is as objective as possible and focuses on specific actions/accomplishments rather than general perceptions. It is important to exercise discretion when gathering information from co-workers, customers and clients and to consider issues related to privacy and confidentiality.

If goals were not met due to conscious acts of poor or inappropriate performance, separate disciplinary action may be initiated.

Most negative reviews are considered operational and are focused on assisting employees to improve their performance in the future. This should not be considered disciplinary. However, if there is a written warning or consequences of failing to comply with workplace expectations issued concurrently with the review, then this would be considered disciplinary in nature and subject to applicable procedures.

During disciplinary reviews, to assist employees in meeting the expectations of the employer, supervisors are expected to instruct employees in proper procedure and to remind employees of appropriate behaviour. If these measures do not produce the necessary improvements, higher levels of disciplinary action may be appropriate. The concept is called progressive discipline and consists of the following general steps: verbal warning, first written warning, subsequent or final written warnings, suspension with or without pay, and termination. Progressive disciplinary action provides an opportunity and timetable to correct misunderstood directions, eliminate incorrect assumptions and resolve conflicts. In many instances, progressive discipline establishes a case in support of dismissal for cause if the misconduct or problem persists. The courts will view the employer as not having excused an employee's misconduct if some form of progressive discipline has been applied.

Formal assessment and/or appraisals of employee performance and written warnings should be recorded in a form prescribed by the employer for this purpose. Document everything during the meeting-what you said, what the employee said, and anything you agreed upon. Remember, if you don't have a written warning, or any documentation from your meeting, your employee could tell the Courts that you discharged him or her without any notice at all.

All warnings or performance appraisals should be signed and dated by the employee. The point of the signature is to signify that the employee has received the said document, has read it and understands the content, but not that the employee agrees with all of its content.

Employees should have the option of indicating their agreement or disagreement with their final performance review or warnings.

The employee should be provided with a copy of the assessment/warning at the time that the assessment/warning is signed by the employee. The original is then inserted in the employee's personnel file.

Before an employer terminates an employee for poor performance or disciplinary issues, the organization must ensure that the individual knows he or she has a problem. The employee should have been given sufficient time to improve or correct the problem. Performance reviews and/or progressive discipline should have been conducted, documented and discussed with the employee. A termination for performance or because of disciplinary issues will not come as a surprise to the employee if these steps have been taken.

Why is documentation essential?

Documentation is an essential element of any human resources program. With respect to accurate performance appraisals, documentation ensures that a manager accurately remembers the goals that he has set for an employee, whether performance standards were met, why standards were not met, and how an employee performed months before. Without documentation, a manager is unable to provide an employee with specific examples of performance. The more complete and accurate the documentation, the easier it is for a manager to make and substantiate an evaluation.

A second use of documentation is to improve feedback between a manager and an employee. Ideally, feedback should be given immediately; however, when this cannot be done, documentation is a reminder of what occurred.

Third, documentation is critical when a manager needs to substantiate his actions to others. In the event that an evaluation, pay raise, or disciplinary action is questioned, documentation will be the key to supporting that action. Memory alone will not be substantial enough to support a decision when grievances, unemployment hearings, human rights complaints and wrongful dismissal suits arise.

Fourth, documentation will help to support a supervisor's position that he or she did or did not do something. For example, did a supervisor explain a new policy or rule to an employee; or inform an employee about a disciplinary policy? Thus documentation provides verification that employees heard and understood new rules and policies.

Finally, documentation can also be used as a record of an employee's training and development. Supervisors can document career counselling, training, developmental opportunities, how an employee performed during training, and an employee's career goals.

What happens if the employee refuses to sign?

If the employee refuses to sign the warning or appraisal, here are your options:

  • As the manager, you should sign the document and add on the form that the employee read the document and was given the opportunity to sign but declined.
  • Allow the employee to write a note/statement in the document outlining that they do not agree with the review or warning, and then sign the note/statement.
  • Another supervisor should immediately be brought in and asked to sign and witness that the employee has seen the document but refused to sign the warning or review.

When an employee disagrees with an assessment and/or the appraisal of his or her work, or the content of a written warning, the employee should have the right to present written counter arguments to the manager(s) or committee(s) responsible for the assessment and/or appraisal, or warning. An employee has the right to make written comments to be attached to the performance review form or written warning.

During the whole process, treat the individual with respect and preserve their dignity.

What then?

Even if the employee refused to sign the appraisal or the warning, the supervisor should continue to monitor the employee's performance or problem to determine what progress has been made and whether the period specified for improvement remains appropriate; or if further action is required.

Employers should afford employees the opportunity to redress negative performance reviews or disciplinary action taken against them by implementing a grievance and/or appeals process.

The employer would be assured adherence to the corrective action process; that employees are accorded due process; that corrective actions are commensurate with the seriousness of performance or behavioral deficiencies; that those deficiencies are documented adequately, and that appropriate corrective action procedures are followed.

Also, to benefit from progressive discipline, consider developing a policy that is uniform, well publicized and applied in a consistent fashion. The policy should clearly indicate which types of conduct are subject to progressive discipline, and the types of warnings that will be used. Not all situations deserve the same penalty.