How to Respond to a Workplace Performance Improvement Plan

If you’ve been struggling at work and your employer or manager has been generally supportive, and they come to you one day and suggest that you meet to discuss a performance improvement plan (PIP), you probably wouldn’t be surprised or feel that you are being treated unfairly.  

On the other hand, if you’ve been doing everything you’re asked to do, but your employer constantly criticizes you, moves the goalposts on tasks and assignments or lies about your work or productivity, and then suggests a performance improvement plan, not only would you be right to feel suspicious, you should contact an employment lawyer in Toronto right away. In fact, you should have contacted an employment lawyer as soon as that behaviour began.

In the second scenario, which is not uncommon, the PIP is often a tool for an employer to manufacture a case for a just cause termination to avoid paying the severance they would otherwise owe you if they simply terminated you without cause; which they are free to do at any time (unless it’s based on discrimination.) 

So, how do you respond? If you want nothing more to do with this employer than to rip the bandaid and walk away, understandable. Best of luck. If, however, it’s not that simple for you to just walk away from a job (or even this job, despite your supervisor/employer), then you and your lawyer must play your employer’s game, build your own case for wrongful termination and act under the assumption that this case will ultimately have to play out in court.

First Step – Identifying a Fake PIP

You cannot refuse to participate in or follow a performance improvement plan, as doing so might be viewed as reasonable grounds for a termination with cause. However, here are a few, not all, of the obvious signs that the performance improvement plan is being used to justify a for-cause termination:

• The criticism of your performance is false or misleading, vague or based on subjective opinions that can’t be qualified.
• The goals or improvements to be reached are generic or unmeasurable, such as “improve quality of work” or “increase sales.” 
• All documentation of your work performance, including evaluations leading up to and including the PIP, only focuses on the negative. 
• The job duties or performance standards mentioned in the PIP are not part of your job description, and no training was provided to accomplish them. 
• Either the goals set out in the PIP or the timeframe to accomplish them is unrealistic.
• There are no supports offered to help you reach your targets.
• The PIP is used as a way for your manager to constantly criticize or harass you for not meeting your goals. 

Responding to the PIP

Despite how unfair it is, you must do your best to comply. But now is your time to start your own paper trail. Send an email regarding the PIP meeting that:

• Addresses any false or misleading statements made about your work in the PIP, evaluation or meeting.
• Ask for specific explanations of vague criticisms or goals.
• Describe how or why the expected performance targets are unrealistic.
• Point out all the reasons for not meeting expectations, e.g., the lack of training or resources.
• State clearly that the meeting was the first time you were told of these targets or job duties.
• Remind your employer of your accomplishments and the challenges you’ve overcome to meet them.
• Speak to any personal, medical, family or religious reasons that are contributing to your lack of success and ask for accommodations.   
• Request training or resources you need to accomplish your goals.

Tone is key in your correspondence. You have to convey your reasonableness and professionalism. Your employment lawyer should help you draft them. Also, keep a copy of all correspondence related to the PIP. Even if your employer decides to address your email by phone or in person, keep detailed notes of the conversation and follow up with an email to confirm what you spoke about.

So What’s the Endgame?

Your correspondence may ultimately be the only evidence you have to defend yourself with in a case that will likely be a they-said-you-said. But don’t get discouraged; business records taken at the time of the incidents in question can carry significant evidential weight.

If this case does end up in court, the judge will have to decide if there was cause to terminate you due to incompetence. Some of the factors they will consider include:

• If your employer told you of the required performance standards.
• If your employer provided support to help you reach those requirements.
• The amount of time you were given to meet your goals.
• The reasons for any substandard performance.

Your emails can be enough to throw doubt on the answer to those questions. However, many employment lawyers know that a thorough and well-thought-out response scripted by an employment lawyer is often enough to make an employer back off, giving you more time to find a new job if you prefer that over taking this case to court.