Written by Attorney Ron LeClair | Owner LeClair and Associates
Pursuant to recent amendments to the OHSA under Bill 132, an employer’s right to provide “reasonable” performance management and direction to a worker “will not be considered workplace harassment”.
The OHSA does not define “reasonable” performance management, nor does it set out any test to establish the “reasonableness” of an employer’s actions. Complicating matters further, the Ministry of Labour’s recently released Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act (“Code of Practice”) does not provide additional guidance with respect to defining “reasonableness”.
As a result, the task of determining the boundaries of the term “reasonableness” has been left to the Ministry of Labour’s inspectors, and they are empowered to exercise such discretion on a case-by-case basis.
This new legislation is likely to cause for more frequent, detailed scrutiny of an employer’s performance management actions, and a potential increase in complaints of “performance management harassment”.
To minimize exposure to such frivolous complaints, and to reduce the likelihood of fines, orders and other corrective action taken by the Ministry of Labour, employers should implement the following best practices:
- Mandatory Investigations – Due to the fact that the legislature has recognized that “unreasonable performance management” is a form of harassment, and that all complaints of harassment must be investigated under Bill 132, management must investigate all complaints of unreasonable performance management under the employer’s workplace harassment policy.
Depending upon the circumstances of the case (i.e. if there is a chance of litigation, the case involves a high-level executive, etc.), the employer may be required to seek an external investigator.
- Know that Existing Legal Tests are Still Relevant – Because “reasonable” has not been defined under the OHSA, the common law test for establishing the “reasonableness” of performance management action is still a relevant consideration. Courts recognize that employers must be able to discuss work performance in an open and candid fashion, so long as the discussion is based on bona fide grounds, or is proffered in good faith. For a Court to tolerate an employee’s lawsuit on these grounds, it must agree that a “reasonable person” would not be able to continue his or her job based upon a single incident or a series of critical evaluations.
It is possible that the Ministry of Labour will adopt a similar line of reasoning to that of the Courts in enforcing the OHSA. Ensuring that all performance appraisals are founded in good faith is a fundamental step that employers should take to minimize exposure to legal claims and boost employee morale.
- Use a Performance Management System – Implementing and consistently relying upon an established performance management system will best equip an employer to ensure that employees are receiving consistent and constructive feedback from their managers, that is (to the extent possible) based on objective metrics. An employer’s system can be developed “in house” or in conjunction with a performance management consulting service, and should reflect the employer’s core values and required competencies, among other things.
- Document everything – Some employees will take issue with even bona fide or legitimate performance related criticism. Such employees may attempt to file a false claim with the MOL, alleging performance management harassment. The best strategy for dealing with this issue is the same as that which applies to the malingering employee: documentation that is dated and created at or around the same time as the performance review, by first hand witnesses, will best equip an employer to safeguard itself against frivolous claims of “performance management harassment”.
Employers should train their reviewing manager/supervisors on how to draft their notes and performance management-related documentation so that it can survive third party scrutiny and minimize legal exposure.
- Second-level Review – Where possible, it may be prudent to have a second-level review of performance appraisals, either by Human Resources or second-tier management. This will serve as a check and balance and will alert the employer to any cases where a manager’s objective review of an employee may have been compromised.
- Continuous Performance Management – Another thing to keep in mind is that an employee can make an allegation of unjust performance management at any point in the employment relationship. Employers are best advised to think of performance management or performance appraisal as an ongoing “workplace conversation”, as opposed to an annual event.
- Train staff on giving and receiving feedback – This applies equally to managerial and other employees. Staff should be specially trained on how to provide and receive negative feedback. Staff should be advised that they will receive constructive feedback about performance on an ongoing, rather than an episodic or sporadic basis.
- Avoid Conflicts – It is imperative that employers train staff to avoid conflicts of interest in workplace reporting structures altogether. Additionally, all managerial or supervisory staff should be trained on recognizing conflicts of interest and on the appropriate steps to take to ensure that conflicts of interest are avoided in the course of delivering performance appraisals. An employee who points to a reviewing manager’s conflict of interest may completely undermine the credibility of the manager, which could limit an employer’s ability to respond to a claim of performance management harassment.
- Encourage Employee Participation – Employers are best advised to create an environment where together the manager and employee can question, challenge and discuss goals and objectives to obtain clarity. This will result in fewer complaints about performance management actions, and boost employee morale.
- Understand Legal Pitfalls – Employers should train all managerial staff on the nuances and pitfalls associated with performance management, such as penalizing employees for taking job-protected leaves, engaging in reprisal, or threat of reprisal, or allowing bias to infect performance appraisals.
As seen in our December Be Safe Newsletter