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10 Essentials for Managing the Employment
Relationship
March 13, 2013
Presented by: Matthew R. Vella, Principal/Lawyer
Vella Labour Law

2. AGENDA
• Dealing with Employee Issues
• Disciplinary Issues
• Performance Issues
• The P.I.P.
• Performance Evaluations
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3. DEALING WITH EMPLOYEE ISSUES
• We must be cognizant of the very important distinction
between:
– Disciplinary issues (misconduct)
– Performance Issues
How we manage problems will vary greatly depending
on this distinction.

4. DISCIPLINARY ISSUES
• These deal with misconduct. Willful (or patently careless)
activity that is worthy of discipline:
– Repeated lateness
– Failure to follow policies
– Smoking in the bathroom
– Inappropriate use of internet or email systems
– Harassment of a co-worker
– Insubordination

5. DISCIPLINARY ISSUES
• Courts have taken up the arbitral jurisprudence. Judges
want to see a proper progression through a system of
progressive discipline:
– Verbal warnings
– Written warnings
– Suspensions (if allowed by contract)
– Threats of dismissal or warnings prior to termination

6. DISCIPLINARY ISSUES
• When following progressive discipline keep the following
key tenets in mind:
– Always warn of future consequence for future actions
– Always be mindful of condoning the behavior by repeatedly
warning without escalation
– Treat like offences alike and start new chains of progressive
discipline for new “types of offence”
• BUT learn how to create broad classes so you don’t have to
keep starting over You do not always have to follow
progressive discipline
– WATCH YOUR POLICIES

7. DISCIPLINARY ISSUES
• Some Innovation: A longstanding tradition in unionized
workplaces, non-union employers may want to consider
use of “Last Chance Agreements”.

8. PERFORMANCE ISSUES
• Distinct from disciplinary issues.
Performance issues should not
be met with disciplinary
responses.
– Poorly done reports
– Missed deadlines
– Inability to properly perform
certain aspects of the job
These types of issues require
corrective action but not disciplinary
action.
The employee cannot be fired until
and unless he has been given a
reasonable chance to improve.

9. PERFORMANCE ISSUES
• Heads up for Human Rights issues
Adam has been the company’s credit manager for 7 years.
In 2013 he is missing deadlines and numerous errors are
found in his work. Adam gets a negative performance
review and then takes a stress leave claiming that the
errors and issues were caused by a major depressive
issue.

10. PERFORMANCE ISSUES
• If a person used to perform well and now is not
performing, be cognizant of the chance that there is a
human rights issue lurking behind the scenes.
• Otherwise, how do we deal with performance issues:
– Coaching
– Verbal warnings
– Written warnings
– Performance Improvement Plans (P.I.P.)

11. PERFORMANCE ISSUES
• Verbal and written warnings are of a different
nature, they are non-disciplinary in tone but simply warn
the employee that her work is not up to standards and
that improvement is required. Offer assistance where
possible.

12. THE P.I.P.
• This is the end of the road for performance
management. Beware, your employee sees it that way
too and will read it differently than you do.
• The P.I.P. sets predefined goals and
targets, deadlines, and regular reporting and meeting
• Make sure your P.I.P. is reasonable! If this is the last step
before a termination, expect that it could be reviewed in
litigation and draft it accordingly.

13. THE P.I.P.
• Make sure that progress throughout the P.I.P. is tracked
and that feedback is provided to the employee where
appropriate
• Give the employee a chance to provide feedback on the
PIP before it is instituted, take reasonable suggestions
where possible, and be ready for unreasonable
suggestions as well

14. PERFORMANCE EVALUATIONS
• These are very important in
litigation and can cause a
huge problem for your
company
• Employees who are
performing well should
receive positive feedback
and encouragement.
• Employees who are having
issues should have those
issues set out in the
Performance Evaluation.
Whatever you put in there is
set in stone as far as a
judge is concerned.

15. PERFORMANCE EVALUATIONS
• The Problem of an “aim to please attitude”
In 2008 Greg is doing “ok” in his position but not overly well. He
has missed some deadlines and struggled with several large
tasks. His work is increasingly filled with errors. His manager
does not want to create conflict and gives Greg a glowing
performance evaluation highlighting his strengths and the “great
effort Greg puts in” without discussing his weaknesses. In 2009
Greg has a new manager who feels that Greg is incompetent.
He gives Greg a negative performance review and recommends
that he take a position of lesser importance. Greg sues the
company for constructive dismissal and blames the new
manager for the issues, citing his glowing 2008 review which will
of course be disclosed to the court.

16. PERFORMANCE EVALUATIONS
• Of course positive feedback and a positive attitude is
always important. The key is to make sure that if there
are issues, those issues are addressed.
• You can do so with positive encouragement and
proposed solutions added into the evaluation so that it is
not overly negative, (employees do not respond well to
overtly negative feedback)
• Fail to address an issue in the performance
appraisal, then expect to, legally speaking, never be able
to address it again

17. QUESTIONS?

18. Free Offer
• We’re offering a free 30-minute consultation that can
include:
 Performance Evaluation review
 Constructing an effective P.I.P.
 Assessment of how your Warnings are written
Contact Maysa to take advantage of this exclusive offer!
mhawwash@na.drakeintl.com
416.216.1067
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19. Upcoming Webinars
Register at http://drake-webinars.com
April 10, 12pm EST
Death of an Employment Relationship
Presented by: Matthew Vella – Vella Labour Law
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20. Thank You for Attending
For questions, please contact Maysa Hawwash
mhawwash@na.drakeintl.com
416.216.1067
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