Canada: Unproductive? Systems And Processes Not To Blame?: Respond With Performance Or Disability Management

In this period of continued economic uncertainty, workers are often asked to do more with less. It is common to hear "we just need to be more efficient – work smarter, not harder". That mantra is not ringing true for many human resources professionals anymore. You are challenged with increasing disability claims (often originating out of stress leaves) and guiding frustrated supervisors as they implement performance improvement plans with employees.

A lack of fitness for duty whether caused by stress, fatigue, drug or alcohol use or dependency among other disabilities, has serious occupational health and safety implications. It often also undermines productivity in a fundamental way, as do employees who simply don't perform despite being fit for duty. They negatively affect morale and place unnecessary stress on other workers. They were the inspiration for the term "presentee-ism".

Efficiency is equated with productivity. Google the term productivity and you will get page after page of hits. Wikipedia describes productivity as "a measure of the efficiency of production, [it] is a ratio of what is produced to what is required to produce it".

This approach is straightforward, scientific even.

Dealing with people however, is more of an art. It is a balancing act of knowing how to properly respond to poor productivity, whether it is on a systemic or individual basis. The right answer can lie in performance management on one end of a spectrum, or in an assessment of fitness for duty and disability management on the other. In both the labour and employment contexts, there is a duty to determine what the underlying cause of the low productivity is. If there is a reasonable basis for believing that the employee is not culpable for the lack of productivity, and the systems or processes in place are not the culprits, an underlying disability could well be the cause.

Two cases in the last five years come to mind in the context of employee productivity. They are Poliquin v. Devon Canada Corporation, 2009 ABCA 216 (CanLII) and Foerderer v. Nova Chemicals Corporation, 2007 ABQB 349 (CanLII). Both are examples of employees behaving badly. In each instance, the employees were dismissed for cause and brought wrongful dismissal actions that were ultimately unsuccessful. In Poloquin, the employee was a senior supervisor. His termination for cause was upheld on the basis of his acceptance of free landscaping services from Devon suppliers and for viewing and transmitting pornographic material on his work computer. If it is, unlike in the following two case examples, performance management is not the right way to proceed.

In Feorderer, the employee was an administrative team leader. His actions negatively affected those in his group and one female employee in particular, creating a poisonous work environment. His transgressions included accessing and viewing pornography while at work, sexually harassing at least one employee, retaliating against her when she complained and lying during the course of an investigation.

There is no doubt that the policy and code of conduct breaches in each instance were "deplorable". There is also no doubt that these employees' actions negatively affected their own productivity and those of their co-workers. How could there have been high output with the employees' actions resulting in their own, and/or their co-workers, low output?

Their employers rightfully took strong action to deal with the respective situations. They not only had a moral, ethical and legal obligation to take steps to stop the behaviours at issue when they became aware of them, they also had a business interest in doing so. In neither instance was there a legitimate underlying disability that made the employees' actions non-culpable or that required accommodation. As such, performance management, including termination for cause, was the proper path to take.

The Court of Appeal referenced the following quote from a Supreme Court of Canada case in the Poloquin decision:

"A supervisor's responsibilities do not begin and end with the power to hire, fire, and discipline employees, or with the power to recommend such actions. Rather, a supervisor is charged with the day-to-day supervision of the work environment and with ensuring a safe, productive, workplace."

This is the extent to which productivity is discussed in either case. But again, this doesn't mean that it is not important. In fact it is fundamentally important. A sufficiently unproductive workplace will drive an organization out of business.

As Paul J. Meyer, a management leadership consultant, has said "[p]roductivity is never an accident. It is always the result of a commitment to excellence, intelligent planning and a focused effort." In the employment and labour law context, this means having strong performance management, fitness for duty and disability management policies and knowing which to use when based on a commitment to employee wellness with clearly communicated goals and objectives for employee behaviour.

Ultimately, effectively managing low productivity through performance or disability management is key to business success in this tumultuous world market.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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