Sometimes employees too easily confuse who gets to call the legal shots. Believing that their job is an entitlement, some workers try to take the law into their own hands. They are often mistaken. This is the tale of one employee who learned this lesson the hard way.
Working out of the Toronto-area offices of software developer VoiceGenie Technologies, Crinu Iliescu quickly wore out his welcome. Hired only 15 months earlier as a software QA manager, Iliescu swiftly lost the firm's trust after his response to a manager's email accusing him of underperformance. Iliescu wrote his boss, the HR manager and the president with five demands he required them to meet before he would return to work.
The next day Iliescu did return to work but found that his access to the computer system and security pass had been removed. He was then met with a “performance improvement plan,” detailing the company's concerns about his behaviour and setting out its expectations from him in the future. Iliescu reacted by rejecting the performance guidelines and declaring that his return to work would occur only when his concerns were fully addressed.
VoiceGenie told Iliescu that its performance plan was not negotiable or subject to his approval and that he was to immediately return to work. When Iliescu did not, VoiceGenie concluded that he had abandoned his position and fired him. Believing that he had been wrongfully dismissed, Iliescu sued the company and its president for nearly one million dollars.
At trial, Justice Randall Echlin found that it was simply not open to Iliescu to reject the performance plan and provide his employer with an ultimatum that it must meet his concerns.
VoiceGenie had a “legal right to require a minimum level of performance,” and instead of working with his employer, Iliescu became adversarial, thinking he was entitled to negotiate terms, wrote Justice Echlin. When Iliescu refused to work after receiving notice that his attendance was required, he effectively resigned. Recently, the Court of Appeal also agreed, dismissing Iliescu’s case.
Iliescu simply lost sight of who was entitled to call the shots. While employees do retain certain rights, rejecting a reasonable performance improvement plan is usually a poor option.
Even if such a plan is imposed in bad faith (which often does occur), protest the plan in writing and continue to work in the meantime. You retain the right to complain at a later time without jeopardizing your own continued employment.
– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com
