Jun 23, 2021  By John Hyde

Decision regarding discriminatory performance review pushes the bounds of employment law

Decision regarding discriminatory performance review pushes the bounds of employment law

A Statistics Canada employee, Renata Slivinski, was recently awarded $25,000 in human rights damages because of a discriminatory performance review. Specifically, Ms. Slivinski’s managers failed to adjust performance expectations in light of her known health problems, which amounted to discrimination, according to the arbitrator.

Decisions like these push the historical bounds of employment law.

Typically, courts have focused on termination in non-unionized workplaces. That is slowly changing with the development of employment standards and human rights laws, which can be litigated even where the employment relationship remains intact.

  1. How and where do employees enforce their workplace rights?

One of the biggest historical differences between union and non-union employees was that the former could pursue grievances during employment, whereas the latter could not.

In the past, when a disgruntled non-union employee wanted to take legal action, he or she would need to quit and sue the employer. That rule became modified with the passage of minimum standards legislation designed to protect employees, and the empowerment of administrative tribunals to enforce that legislation, including ministries of labour, labour relations boards, and human rights tribunals across the country. Employees may now bring complaints to these tribunals about employment standards, human rights, or health and safety issues, all while continuing to work.

  1. What kind of issues can be litigated during employment for non-union employees?

Many rights granted to non-union employees by statute can be litigated during employment.

For instance, in Ontario, employees not receiving the proper overtime pay may apply to the Ministry of Labour for compensation; employees who are demoted for raising valid health and safety concerns may bring an application to the Ontario Labour Relations Board; and employees who feel discriminated against may apply to the Human Rights Tribunal for relief. Employers who retaliate against employees for filing such complaints can be ordered to pay damages, lost wages, or even fines.

  1. What kind of issues cannot be litigated during employment for non-union employees?

Typically, performance management is supposed to be firmly within the employer’s discretion. It is rare that a court or tribunal will take a second look at a performance review unless it relates to a termination.

Disputes about performance management are recognized to be complex and fact-specific – so much so, that courts went to great pains to develop employment law almost exclusively around termination of employment. The idea was that courts should not meddle in relatively minor, day-to-day workplace disagreements. In theory, these things would either iron themselves out, or lead to a total breakdown in the employment relationship.

Until very recently, judicial intervention was not warranted.

  1. How does the Slivinski case push those boundaries?

The arbitrator found that Ms. Slivinski was a victim of discrimination by virtue of a negative performance review. 

Interestingly, Ms. Slivinski had not requested accommodation, nor did she show any evidence that her health problems affected her performance. Nevertheless, the arbitrator held that Ms. Slivinski’s managers ought to have loosened her performance standards, based upon her known health issues. Since they failed to so, the performance review was unlawful; it had a “profound effect” on Ms. Slivinski; and the employer was liable to pay damages flowing from that, which the arbitrator assessed at $25,000.

Although Ms. Slivinski was a unionized employee, the arbitrator reached this decision by applying the Ontario Human Rights Code, which applies equally to both union and non-union employees.

  1. What can employers do to protect themselves?

While employment lawyers may look at Ms. Slivinski’s case as a slippery slope towards judicial intervention in the workplace, the facts show that the result was easily avoidable.

Employers can significantly reduce the risk of costly slip-ups during employment by doing two things:

  1. First, train all supervisors and managers about their legal obligations under employment standards and human rights legislation. In Ms. Slivinski’s case, her supervisor had observed that Ms. Slivinski’s time off work due to illness had likely hurt her performance. Ideally, this observation alone should be enough for a manager to identify a potential human rights issue.
  1. Second, employers need to cultivate, protect, and monitor personal relationships between managers and subordinates. Legal issues in the workplace usually start as interpersonal issues. Interpersonal issues escalate to legal issues when the employee feels they have nowhere else to turn but to an employment lawyer. In Ms. Slivinski’s case, the arbitrator wrote that her “broken and toxic” relationship with her supervisor likely thwarted any resolution of the performance expectations.

If you have any questions about employee performance and human rights issues in the workplace, please do not hesitate to contact us for our expert opinion.

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