PERFORMANCE APPRAISALS: COLLECTIVE AGREEMENT IMPACTS AND CHALLENGES

Scott Mostoway SARC Senior Labour Relations Consultant

Performance Appraisals – a somewhat daunting and intimidating task that many managers feel they have to “just get through” at least once a year. It’s a time in which managers can properly assess the skills and abilities of their employees while also providing feedback on areas of improvement. Sounds simple, right? Well, in theory it is, but in practice it’s not that simple. Like many others do, managers are not immune to the feeling of awkwardness when being asked to assess the performance of their subordinates. Managers strive to form positive working relationships with their employees and having to administer a performance appraisal (especially one in which performance deficiencies are present) put those relationships at risk. As difficult as this scenario may be, it’s still a necessary function of management. The question then becomes, what obligations does management have with performance appraisals in regard to their collective agreements in a unionized environment?

Collective Agreement Language Impacting Performance Appraisals

In the traditional sense of employer-employee relationships, management has the fundamental right to judge the competency of its employees. Like many other residual/fundamental rights of management, the only time those rights get constrained is when there is language in the collective agreement that is specifically limiting. Each collective agreement has to be carefully reviewed to determine management’s obligations when conducting performance appraisals. Below are some examples of language that is most seen in the disability service sector:

• Mandatory performance appraisals for employees either at the end or midpoint of their probationary period.

• Language permitting the appraised employee to provide a written response to the performance review.

• An employee signature shall not constitute an agreement with the review.

• Performance appraisals are not disciplinary in nature. When reviewing collective agreement language in regard to performance appraisals, it is imperative that management avoid language that limits their ability to manage. It is strongly encouraged that performance discussions happen on an ongoing basis and are addressed with progressive discipline as opposed to waiting for performance appraisal time once a year.

That said, is a performance appraisal a disciplinary document subject to challenge under the collective agreement?

Can the Union Challenge Performance Appraisals Under the Collective Agreement?

There has been a significant amount of jurisprudence trying to answer this question. I think the most concrete answer to this point is that “it is to be determined on a case-by-case basis”. Arbitrators have generally agreed that not every piece of communication about an employee’s performance is to be construed as disciplinary. However, when addressing whether written communication constitutes discipline, arbitrators generally consider whether the written communication forms part of the employee’s employment “record”. If that answer is no, then it has been established that challenges to these appraisals are not subject to the grievance procedure under the collective agreement. One of the exceptions to this rule is in circumstances where there are express provisions in the collective agreement allowing such review. Examples of this would include language in the collective agreement spelling out that appraisals can and will form the basis for future discipline, promotion, or wage rate considerations.

When everything is said and done, performance appraisals are an effective tool for managers and their subordinates to have frank discussions in the workplace regarding performance.

It is an opportunity for employers to express constructive criticism when needed as well as appropriate praise when things are going well. As effective as performance appraisals can be, they should not be used as a substitute for progressive discipline when issues arise and instead be used as a non-disciplinary motivational opportunity for discussion.