Performance Improvement Plans - Employers entitled to a minimum level of performance
By Daniel A. Lublin, Employment Lawyer

"Never attribute to malice what can be adequately explained by stupidity." - Unknown

Sometimes employees too easily confuse who gets to call the legal shots. Believing that their job is an entitlement, some workers try to take the law into their own hands. They are often mistaken. This is the tale of one employee who learned this lesson the hard way.

Working out of the Toronto-area offices of Software developer VoiceGenie Technoligies, Crinu Iliescu quickly wore out his welcome. Hired only 15 months earlier as a Software Q.A. Manager, Iliescu had promptly gained the firm's trust - but lost it just as fast after his response to a manager's email accusing him of underperformance. Iliescu wrote his boss, the HR manager and the president with five demands he required them to meet before he would return to work, putting the company's deadline on a project in peril.
The next day Iliescu did return to work but found that his access to the computer system and security pass had been removed. He was then met with a Performance Improvement Plan, detailing the company's concerns about his behaviour and setting out its expectations from him in the future. Iliescu reacted by rejecting the performance guidelines and declaring that his return to work would occur only when his concerns were fully addressed.

VoiceGenie responded by advising Iliescu that its performance plan was not negotiable or subject to his approval and that he was to immediately return to work. When Iliescu did not, VoiceGenie concluded that he had abandoned his position and fired him. Believing that he had been wrongfully dismissed, Iliescu sued the company and its president for nearly one million dollars.

At trial, Justice Randall Echlin found Iliescu had not been constructively dismissed by VoiceGenie. It was simply not open to Iliescu to reject the performance plan and provide his employer with an ultimatum that it must meet his concerns. VoiceGenie had a "legal right to require a minimum level of performance," and instead of working with his employer, Iliescu became adversarial, thinking he was entitled to negotiate terms, wrote Justice Echlin. When Iliescu refused to work after receiving notice that his attendance was required, he effectively resigned.

Iliescu simply lost sight of who was entitled to call the shots. When this occurs, an employer may be able to treat the employee's actions as insubordination, or worse, as Iliescu learned - cause for his own dismissal.

This decision serves as a reminder that employers own their workplaces and have the right to manage them as they see fit. While employees do retain certain rights, rejecting a reasonable performance improvement plan is usually a poor option. Employees should consider the following:

• Report to work when told to do so. By absenting himself without a justifiable reason, Iliescu effectively resigned.
• You cannot reject outright a performance improvement plan. Even if such a plan is imposed in bad faith (which often does occur), you should protest in writing and continue to perform your job in the meantime. You retain the right to complain at a later time without jeopardizing your own continued employment.
• Do not go to court without a lawyer. Iliescu argued his own case, and it clearly showed in the decision.

Daniel A. Lublin is a partner with the employment law firm Whitten & Lublin LLP.  He is consistently recognized as one of Canada's top employment lawyers.  Daniel can be reached at: dan@toronto-employmentlawyer.com