'There definitely could be human rights consequences for that termination': employment lawyer explains how Meta's performance-based layoffs would apply in Canada
Meta Platforms, the parent company of Facebook, Instagram, and WhatsApp, has announced plans to cut roughly 5% of its workforce, or about 3,600 employees.
In an internal memo, Mark Zuckerberg said the cuts would be performance-based and implemented during the company’s regular review cycle, aimed at increasing performance standards across the board, in anticipation of what he called an “intense year."
The news has sparked backlash from employees, who questioned the ambiguous nature of the performance metrics mentioned in the memo, such as: “We won’t manage out everyone who didn’t meet expectations for the last period if we’re optimistic about their future performance.”
With American giants like Microsoft and Amazon also announcing performance-based staff cuts recently, Canadian employers may be wondering how the strategy would play out north of the border.
For answers on that topic and recommendations for HR, HRD Canada spoke with Goulart Workplace Lawyers’ associate partner Christine Krueger.
Unlike the U.S., where employment-at-will is the default and employment contracts aren’t a given, Canadian employment law imposes significant constraints on terminations, says Krueger. In the context of Canadian regulations, “performance-based” employment decisions generally refer to whether the termination is with or without cause.
“If you are terminating somebody for performance, you're still probably terminating them without cause. Because for cause … this is like the capital punishment of employment law,” she says.
“You're not really getting a package, potentially, you're just getting statutory minimums if your conduct doesn't reach the statutory definition of what we call willful misconduct, neglect of duty and willful disobedience. So, if you're terminating somebody for performance without cause, you have to comply with the law in terms of what the minimal entitlements are. You have to comply with whatever the contract might say with respect to termination.”
Across most provinces and territories, employers must comply with both statutory minimums and common law obligations, which often exceed the minimum requirements. In some cases, this can result in substantial severance packages; in the context of performance-based terminations, Krueger advises Canadian employers to provide meaningful performance improvement plans (PIPs) before making termination decisions.
“Work with that employee to try and get them to be the productive employee they're not being,” she says.
If performance is still not improving after that route has been exhausted with an employee, Krueger stresses that termination with cause should only be used if there was a serious misconduct or breach of trust.
However, she notes that for most performance-based issues, “you have to terminate without cause, and you have to look to their employment agreement [and] minimum standards in the province in which they live and work.”
In the widely distributed internal memo to staff, Zuckerberg explained that Meta aims to "raise the bar on performance management" by conducting "more extensive performance-based cuts" during its performance-review cycle. The layoffs are intended to ensure the company has the “strongest talent” while creating opportunities to hire new employees in 2025, the memo detailed.
“We’ll follow up with more guidance for managers ahead of calibrations. People who are impacted will be notified on February 10 or later for those outside the U.S.”
As reported by Business Insider, Meta’s approach has also sparked concerns among employees about fairness and transparency in performance evaluations. On an internal message board, employees aired their misgivings around the accuracy of the evaluations, and how employees on mental health or maternity leave, for example, would be handled, with one employee likening the process to “monkey’s [sic] throwing darts”.
Business Insider reported that Meta’s vice president of human resources, Janelle Gale, posted online that an FAQ would be provided to employees “with additional information around how this process will work.”
In Canada, such actions would likely prompt legal scrutiny under provincial human rights codes, Krueger warns, requiring employers to demonstrate that performance issues were unrelated to protected grounds.
Another key difference between the U.S. and Canada lies in how performance metrics intersect with human rights considerations, Krueger explains.
In Canada, any termination, including those based on performance, must be carefully reviewed for potential discrimination. For instance, factors such as age, disability, or family status could expose employers to legal claims if they were found to influence the decision to terminate.
“If there is a factor, [for example] the person’s 80 years old and can’t click on the computer well enough – that is the protected ground under the Ontario Human Rights Code,” says Krueger.
“There definitely could be human rights consequences for that termination, even though it’s a performance-based termination.”
Other critics point out potential repercussions such as diminished morale and a heightened sense of job insecurity among remaining staff.
To mitigate risks associated with performance-based terminations, Canadian employers should adopt best practices that prioritize fairness, transparency, and compliance with legal obligations. Krueger offered the following advice:
As Krueger concludes, while efficiency is an understandable goal for employers, it should be balanced carefully with legal, ethical and reputational considerations.
“As an employer, if you want to incentivize your people, if I was their employment lawyer, I'd say ‘Do it by incentivizing them with a bonus plan or commission plan,’” she says.
“Most employees Google stuff. They read articles online. They know they have rights. … You’ve got all these outfits out there that cater to employees who have been terminated. So people educate themselves. They know: ‘Okay, you want to terminate me, they have to give me a package.’
“I don't think it's the way to achieve success for a business, to threaten terminations.”
