Tag Archives: Human Rights Law

Regular Employee Performance Appraisals a Must

by Michael V. Coyle, JD*

Sally’s job performance had been slipping. The boss grumbled but did nothing. Recently, she missed an important deadline that cost the company a contract. She used the ‘excuse’ that she was often distracted by her home situation because, as the employer knew, she had to look after her elderly mother with progressive dementia. The boss didn’t buy it and she was fired for poor performance.

Joan’s work was first rate. She was up to any challenge. The boss and the clients loved her and she was a real asset to the company with a bright future, which everybody just assumed she knew. Then she quit to work for a competitor and many of the clients followed her out the door.

In neither case did the company do regular employee performance appraisals. And in both cases it cost them.

Sally sued for wrongful dismissal and won. The company was unable to document her “increasingly poor performance” leading up to her dismissal and, even worse, was unable to show that there had been any warnings or counselling or any progressive discipline before she was fired for that “one incident”. She testified that her boss was irritable and unapproachable and made snide comments all the time. She also successfully brought a human rights complaint against the employer because the company had failed to accommodate her family situation and therefore had discriminated against on grounds of her family status. All told, with legal fees and damages, the cost to the employer was well in the six figure range.

If Sally had had regular performance appraisals not only would the employer have a record of her deteriorating performance and their efforts to help her improve it but they would likely have been made aware of her home situation. Human rights tribunals across the country are increasingly placing an onus on the employer, once they are aware of a potential human rights issue, to explore that with the employee and discuss accommodation. A routine performance review would have provided that opportunity.

The failure of Joan’s employer to have regular performance appraisals meant that it missed the opportunity to tell Joan how great she was doing, to thank her for her efforts and to discuss her future with the company. Instead, she felt taken for granted and that her accomplishments were unnoticed and unappreciated. She was particularly disappointed that the company never asked for her input on what they could do to be a better employer. When the competitor offered a more progressive employment package that included support for employee growth and development (based on regular reviews) she was off like a shot.

Performance reviews do not need to be a torment – for either the employee or the manager. Performance appraisal forms should avoid ‘check boxes’. They should permit both the manager and the employee to give a narrative answer, without the incessant ‘excellent, good, fair, poor’ categories or their numerical equivalents.

The purpose of these reviews is twofold. They provide an opportunity for the manager to give feedback – both positive and negative – so that the employee knows where they stand, good and bad. And they give both parties an opportunity to look towards the future in a constructive and mutually beneficial way.

It is legally very risky indeed for an employer not to have regular performance reviews with all of their employees. It is equally risky for employees to work for such an employer.

Regular performance reviews should, of course, be tied to a currently updated company employment policy. But that’s another topic.

*Michael Coyle is an experienced employment and human rights lawyer based in Kentville, Nova Scotia. Information and opinion expressed in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at michael@mvc-private-law.ca  For more information and tips, visit his website at www.michaelcoyle.ca

©Michael V. Coyle, 2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Human Rights Law: Practical Tips on the Duty to Accommodate

by Michael V. Coyle, JD*

“How long do I have to keep a job open for someone who is off sick?” is a question I have been asked by any number of employers over the years.

The most important thing to understand in answering that question is that it is not strictly an employment law question. It is actually a Human Rights question. The Duty to Accommodate is a doctrine devised by the courts to enforce human rights laws that prohibit discrimination. The duty to accommodate applies to all prohibited grounds of discrimination (age, gender, race, religion, disability, health, political beliefs, family status, etc.), not just sickness or injury; and it applies to all who provide services or accommodations (landlords, for example), not just to employers.

That is important to know because Human Rights laws are “quasi-constitutional” in nature and they take precedence over all other laws except the Constitution of Canada itself.

So, while employment law might say that an employee who is absent from work due to illness has breached their employment contract by failing to come to work, Human Rights law says “not so fast”.

The duty to accommodate is by no means a “new” development in the law. It has been the law in Canada for over a dozen years and it is one that continues to evolve.

Essentially, an employer must accommodate the employee by putting them on a leave of absence without pay, while holding their job for them and keeping it there “to the point of undue hardship” for the employer. You will note that is to the point of “undue hardship”, not simply “to the point of hardship”. The law assumes that there will always be some hardship involved for an employer in every accommodation.

So, what might be considered “undue” hardship? The law has not established a time limit or time formula for determining when a medical absence becomes an undue hardship. Each case has to be looked at on its own. Generally, an extended absence might create an undue hardship for the employer when, for example:

  • The employer is unable to attract or retain persons qualified for the position because it is not being offered permanently.
  • The cost of paying an employee’s benefits while that person is not working becomes unreasonable.
  • The employee’s skills or qualifications become outdated.
  • A new business focus or approach no longer requires the employee’s qualifications or skills.

That is not to say that, at some point, a prolonged absence will not by itself become an undue hardship and violate the employment contract. It is just to say that it can be difficult to show exactly that the point has been reached that the employer can legally let the absent employee go.

The next question (more of a statement, really) that employers typically ask is: “Well, if I have to accommodate this person then I have the right to know the precise details of their medical condition, right?”

The answer is “no”. An employer is only entitled to receive the information necessary to enable it to accommodate the employee. This will include medical verification that the employee has a legitimate illness, and a professional estimate of how long the employee will need to be accommodated.

It is important to understand that just because a person had a right to be accommodated that does not mean that their privacy rights go out the window.

Although they rarely admit it, some employers (and, sadly, even some lawyers) seem to think that they can thwart the employee’s human rights and, in effect, make them “go away”, by demanding  embarrassing or unnecessary medical information. That can be a very dangerous tack for an employer to take.

If the doctor is unable to say how long the employee will likely be off work that may, or may not, end the employer’s duty to accommodate. If the doctor is simply saying that the prognosis is uncertain at present or perhaps that further tests are needed or that a specialist is being consulted, that would probably not end the employer’s duty. If, on the other hand, the doctor is saying firmly that the person will be off work “for the foreseeable future” and there is no “return to work date” available, then that may well end the duty.

On the other hand, the employee is required to co-operate with the employer and obtain medical verification that can reasonably assist the employer in its duty to accommodate. An illegible or cryptic note scrawled on a prescription pad saying something like “Joe is off work until further notice” is not likely to be sufficient. Frankly, the problem here is often with the doctor, not with the employee. Some doctors still believe that a handwritten “doctor’s note” is all that anyone needs and some doctors may  take offence at any suggestion that their authority to “put someone off work” is apparently being questioned by anyone.

A lot depends on how the employer approaches the question of medical verification with the employee. If they do so with obvious suspicion and mistrust – as though they are trying to drive a wedge between the employee and their doctor – the  results and the quality of information they receive are often predictable. However, if they take a more open-minded approach from the perspective of an employer who is genuinely trying to accommodate their employee, the results in my experience are much more satisfactory for all concerned.

In cases where the employee is able to return to work on limited or modified duties, the employer is entitled to have professional verification that the employee has a legitimate functional limitation, a description of the limitation to help the employer accommodate that limitation.

I have only discussed here the most common situations where an employee has been “put off work” because of an illness, be it physical or mental. That would, of course, include what are often called “stress leave” situations. More complex situations where employees have on-going disabilities that need to be accommodated in the workplace, or that might involve workplace safety concerns, or ones that involve determinations of “bona fide occupational qualifications”, will require different assessments.

So, too, will cases where the discrimination that must be prevented by accommodation is based on grounds other than illness or disability, such as those based on gender, religion or family status.

I cannot emphasize enough how important it is for employers to get competent advice before committing to a course of action in these cases. This is a highly specialized area of law. The fact is that early, knowledgeable advice can actually save you a lot of money in these cases. There is very little that a lawyer can do for you once a Human Rights complaint is filed except provide expensive representation at a human rights hearing or in a lawsuit that probably could have been avoided with experienced legal advice in the first place. If in doubt, you should seek a second opinion.

For legal advice about your personal or business situation, please contact me.

*Michael Coyle is an experienced employment, labour and human rights lawyer based in Kentville, Nova Scotia. Information and opinion expressed in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at michael@mvc-private-law.ca  For more information and tips, visit his website at www.michaelcoyle.ca

 ©Michael V. Coyle, 2012