Employees seeking to dismiss their habitual underperformer usually follow a prescription for a tidy divorce:

Gather ammunition in the form of a series of negative performance reviews and create a paper trail documenting all allegations and concerns. This creates a mountain of evidence for the dismissed employee to overcome.

Performance appraisals can, however, be a double-edged sword. For maligned employees, I often recommend they prepare for the battle by building a supportive documentary case – in essence, challenging a negative or unjust performance appraisal. Then, should legal confrontation ensue, the employee has the ability to contest any injurious inference drawn by a series of unsatisfactory appraisals.

Precedents indicate employers owe a duty to provide employees with the opportunity and means required to improve under performance, if dismissing on those grounds. Judges require employers prove the employee was grossly incompetent, and that progressive warnings, identifying areas of concern were issued.

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Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com