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Do you feel like you're walking a fine line? Balancing the need to manage your team's performance and deliver constructive criticism without being accused of harassment?
It's a challenge that many leaders find themselves facing, as workers are quicker than ever to make these allegations.
When we're worried about crossing lines, it's important to understand very clearly where the line lies. According to the Ontario Occupational Health and Safety Act (OHSA), workplace harassment is defined as:
"Engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually through the use of information and communications technology, that is known or ought reasonably to be known to be unwelcome."
But the OHSA also explicitly protects supervisors from harassment claims based on reasonable management actions:
"A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment."
And the labour arbitration case law has offered managers and supervisors a wide leeway to manage employees, even managing them poorly, without it becoming harassment. For example, a 2015 arbitration decision said that,
"A supervisor may be incompetent, irritating, annoying or frustrating ... abrasive or overly assertive. His or her management style may drive employees nuts but the fact that employees do not like the management style of a supervisor does not mean that his or her conduct amounts to harassment."
On the one hand, this means supervisors should not be afraid to manage employees for fear of a successful harassment complaint against them. Performance management is essential to the supervisor's duties, and the law creates space for supervisors to do it confidently, as long as their behaviour isn't abusive or unreasonable.
However, just because a performance management approach doesn't rise to the level of harassment, that doesn't mean it's a good approach. It might still be having a negative impact on employees, making performance discussions feel like bullying. That perception can lead to harassment complaints being brought in good faith (and can require difficult and disruptive investigations), even if it's unlikely to actually be harassment. To avoid even going down this road, we can look at ways to facilitate better performance discussions.
Here are 5 tips to improve your approach to performance management.
1. Lead with Positive Intention
Before entering any performance conversation, take a moment to reflect on your intention. Are you here to support growth, build trust, and help the employee succeed? Approaching the discussion with a mindset of curiosity and care, not criticism, sets the tone for a constructive exchange.
2. Start with Strengths, Then Share Concerns Thoughtfully
Begin the conversation by acknowledging what's going well. Highlight specific strengths and contributions the employee brings to the team. This not only builds confidence but also reinforces desired behaviours. When it's time to address areas of concern, be clear and specific. Share examples that illustrate the issue and explain the broader impact on colleagues, workflows, or organizational goals. Framing concerns in this way helps employees understand the "why" behind the feedback, making it easier to accept and act on.
3. Anticipate Resistance and Prioritize Psychological Safety
It's natural for people to feel defensive when receiving feedback. Expect some resistance and recognize it as a sign that the employee is seeking psychological safety. Your role is to create a space where they feel heard, respected, and not shamed. This means validating their perspective, allowing them to "save face," and avoiding blame. When employees feel safe, they're more likely to engage openly and take accountability.
4. Listen to Understand, Not to Respond
Effective performance management is a two-way conversation. Take time to genuinely listen to the employee's point of view. Ask open-ended questions to explore their perspective and reflect back what you hear to show understanding. When people feel understood, they're more receptive to feedback and more motivated to improve. Listening is not just a courtesy; it's a strategic tool for driving change.
5. Co-Create an Action Plan and Express Confidence
End the conversation with a clear, collaborative action plan. Identify specific steps the employee can take to improve and outline how you'll support them along the way. Whether it's coaching, resources, or regular check-ins, your involvement signals commitment.
Ultimately, feedback should be a tool for growth, not a source of fear. When leaders approach these conversations with empathy, clarity, and a commitment to development, they create space for trust and progress. It's not enough to avoid legal missteps. We should aim higher, fostering a culture where feedback is constructive, respectful, and genuinely supportive of employee success.
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.
