Keeping the Right People
Clear expectation, appropriate supervision and feedback on a day-to-day basis are the best ways to avoid the necessity of implementing a discipline process as outlined below. However, when problems with behaviour or performance occur, discipline is necessary. By implementing a discipline process, you provide employees with an opportunity to become a productive part of your organization and you make any termination more defensible if taken to court.
This section of HR Toolkit is for general information purposes only. It is about discipline of an individual employee who is not covered by a collective agreement. It is not legal advice. This information should be read and understood in its entirety. Reading and/or reproducing only parts of this section could result in misunderstanding of its contents. Please read and/or reproduce this section in its entirety.
Preparing for discipline
Most employees want to do a good job. The manager/supervisor can help employees succeed on the job by:
- Providing a thorough orientation for new employees
- Clearly establishing expectations for behaviour and performance
- Providing training, coaching, and mentoring
- Providing feedback through appropriate supervision
- Implementing a good performance management process
However, in every workplace there will be situations where an employee fails to meet expectations or where an employee commits acts of misconduct.
A well-designed performance management system will help employees to understand expectations and goals and measure performance towards those goals. Training, coaching, and mentoring will help when an employee is falling short of meeting the goals. Positive reinforcement will foster an environment of performance improvement.
There may be times when, despite all of the supervisor's best efforts, the employee continues to demonstrate unsatisfactory performance or problem behaviour. Traditionally, managers/supervisors have used progressive discipline to deal with these situations.
It is important that the employee knows or ought reasonably to have known that his or her actions would be cause for discipline. The employer should have a policy covering discipline that has been read by, understood, and agreed to by the employee at the time of hire.
The aim of progressive discipline is to help the employee turn around the problem behaviour and become a positive contributor to the organization. Progressive discipline is meant to be corrective rather than punitive, with the overall aim to rehabilitate the behaviour of the employee. Except in the most serious of situations, termination of employment is - and always should be - the last resort. This final step should be taken only after the employee is provided with several chances to improve behaviour. Establish a discipline policy and procedures:
- Establish a discipline policy and procedures
- Determining appropriate action
- Planning for a disciplinary discussion
Establish a discipline policy and procedures
The approach taken by your organization on discipline should be set out in a policy rather than determined after an incident has occurred. Establish a discipline policy and procedures for your organization in consultation with your staff by considering:
What types of behaviour or problems could result in immediate termination (after a proper investigation)?
- It should be clear that your organization reserves the right to terminate for serious problems such as illegal activity, abuse, harassment, theft and fraud without going through a progressive discipline process
Does the manager/supervisor require approval of his/her supervisor before implementing progressive discipline or at some point during the discipline process?
- The discipline process may, in the end, result in a termination
- Given the potentially serious nature of progressive discipline, consider who needs to be informed about the situation and when
- Consider who will be responsible and accountable for the disciplinary decision
Does your organization have a Code of Conduct and an Appeals Process to support the discipline process?
- A Code of Conduct lets your employees know the organization's expectations for behaviour. With a Code of Conduct in place, employees are less likely to be taken by surprise if disciplined about inappropriate behaviour in the workplace
- An appeals process assures employees that their concerns will be heard if, in their opinion, discipline has been implemented inappropriately
Will the policy state the minimum number of verbal or written warnings that will be given before progressing to the next stage of the process?
- There is no set standard on how many verbal or written warnings must be given, however, the employer must be consistent from one situation to the next
- However, the final warning should indeed be final and another incident should result in termination
Will your organization have different lengths of suspension?
- There is no set standard for the length of suspensions, however, the employer must be consistent from one situation to the next
- Some organizations start with a one-day suspension and allow for additional suspensions of three days, five days, ten days, etc. after the initial and subsequent suspensions. This will depend on the nature of the behaviour
Will both the employee and the employer have the option to ask someone else to witness the discussion(s)?
- Being disciplined is likely to raise a number of issues for the employee, one of which is the fairness of the process. One way to try and alleviate this concern is to allow the employee to have a coworker of his/her choice sit in on the discussions (note that in a unionized requirement, the presence of a union steward may be required by the collective agreement)
- If the discipline process moves to the suspension or termination phase, the manager should have a witness to the discussion/meeting to confirm that the employee was treated fairly and with respect
- Any witnesses to the process must be informed of the need for confidentiality and any breaches of confidentiality should be dealt with
Are there circumstances when a suspension could happen without the preceding warnings?
- It should be clear that your organization reserves the right to suspend an employee without going through the preceding steps of the discipline process, if the nature of the behaviour warrants suspension
How much time must pass without another infraction to give the employee a 'clean slate'?
- The length of time should reflect the severity of the problem. Once the employee is given a 'clean slate', if a behaviour problem occurs, the discipline process would start over at the beginning
How will you accommodate situations where the employee's behaviour or performance deficiencies are as a result of mental or physical disability?
- You are under an obligation to abide by human rights codes/act. If a mental or physical disability was the cause, or a contributing cause, of the problem, the employee may need to be accommodated. For example, if the employee has a substance abuse problem that was the cause, or a contributing cause, of the problem, he or she may be required to undergo treatment rather than a receive a suspension from employment.
Once the discipline policy and process for your organization is established:
- Train all manager/supervisors on the process to ensure that it will be applied fairly, consistently, and appropriately
- Clearly communicate the discipline policy and process to your employees
- Clearly communicate the organization's expectations for behaviour
- Apply the discipline policy fairly and consistently
- Base disciplinary decisions on the facts of each situation
It is very difficult to terminate an employee for job performance deficiencies. You would have to demonstrate that the employee was given very clear guidelines and expectations for performance, time and support to improve, training and coaching, and ongoing feedback before disciplining an employee for lack of performance. You would be wise to consult with a lawyer if you are considering terminating the employment of an employee, for cause, for performance deficiencies.
Determining appropriate action
When a problem occurs, the manager/supervisor will have to determine the seriousness of the situation and the appropriate response. In making this decision the manager/supervisor needs to be fair and act in good faith towards the employee. Some factors to consider in making this determination are:
- Is the behaviour consistent or inconsistent with past behaviour of the employee?
- Did the employee act with willfulness or intent, or was the problem due to carelessness or inattention?
- How many times has the problem occurred?
- Has the problem occurred frequently in a relatively short period of time?
- Has a similar or the same problem happened before? How long ago was the previous occurrence?
- How serious is the problem and has it had a negative impact on the organization and/or other employees?
Treatment of others
- How have other employees been treated for the same behaviour?
- Was the employee provoked by the actions of another individual?
Admission and apology
- Has the employee admitted to behaving poorly and apologized for the behaviour?
Other questions to consider include:
- Was the employee given advance warning of the possibility of disciplinary consequences of their conduct, through a policy on progressive discipline?
- Was the supervisor's investigation conducted fairly and objectively?
- Did the investigation produce clear and substantial evidence that the employee committed the infraction?
- Did the organization apply its rules, directions, policies and procedures without discrimination?
- Are there any mitigating factors? For example, does the employee have some personal, physical, or psychological issues that would explain the behaviour or actions?
Planning for a disciplinary discussion
If the situation is determined to be minor, the manager should have a discussion with the employee to establish the standards for future behaviour.
If the behaviour is as a result of an employee's personal, mental, or other psychological issues, the supervisor should determine how the employee can be assisted with counseling.
If the decision is made to implement progressive discipline, the manager/supervisor needs to consider the appropriate time and place for the disciplinary discussion.
The discipline process should happen reasonably soon after an incident and progress to the next stage in the process, if necessary, without undue delay. If the discipline process results in a termination, any undue delays in the process could be interpreted as condoning the behaviour and will make it difficult to rely uponthe behaviour as the cause for the termination of employment.
At each stage in the discipline process the manager/supervisor should meet with the employee in private. If your organization allows the employee or employer to have a witness at the process, the witness(es) should be informed of the confidential nature of the process.
Progressive discipline is a formal process of increasingly severe consequences for dealing with issues of misconduct in the workplace. Increasingly severe consequences are used to give the employee incentive to improve. However, if the employee continuously fails to make the necessary changes, the end result of a progressive discipline process is termination of employment (see the HR Toolkit section on Termination).
Most progressive discipline processes include the following stages:
Verbal Reprimand > Written Reprimand > Suspension > Termination
Remember to define in your policy the minimum number of verbal or written warnings that will be given before progressing to the next stage of the process, while allowing yourself some discretion depending on the nature of the misconduct.
If the problem is corrected at one stage of the progressive discipline process, the disciplinary process ends.
Stages of progressive discipline: verbal reprimand
- Set up a disciplinary discussion as per guidelines above
- Clearly identify the problem or issue with the employee's behaviour or performance
- Give the employee an opportunity to respond and/or explain contributing factors (i.e. mitigating factors; provocation; mistake; etc.)
- Provide the employee with clear instruction on how to improve and outline any support you can give the employee to make the required changes
- Ensure the employee understands the standard that is expected
- Explain the consequences of not correcting the behaviour (depending on your policy and the nature of the misconduct, this may be another warning at the same stage or progression to the next stage of the process)
- Provide a specific time period during which the change is to take place
Place a notation in your calendar to indicate that the verbal warning has taken place along with the time period for change.
Stages of progressive discipline: written reprimand
Prepare a written reprimand if the problem, or another problem with the same employees, happens again within the timeframe outlined in your organization's progressive discipline policy. Deliver the written reprimand in a private meeting, discuss the contents of the reprimand with the employee, allow the employee to respond and determine if there are any contributing factors. The written reprimand should include:
- A description of the problem or issues
- Reference to the verbal reprimand that preceded the written reprimand and the changes in behaviour that were expected
- Clear instructions on what and how the employee is expected to change
- The consequences of any further incidents
Ask the employee to sign a copy of the written warning to confirm that s/he has received, read, discussed and understood the warning. If the employee refuses to sign, make a note that the employee refused to sign. Give the employee a copy of the written warning and place a copy of the written warning and the employee's confirmation of receipt in the employee's personnel file. If the employee refused to sign, make a note that a copy of the warning was given to the employee.
Warnings are still valid even when an employee refuses to sign the document. If an employee refuses to sign, the manager should make note of this on the document and provide a copy to the employee.
Stages of progressive discipline: suspension
It is important to note that it is not legal to suspend an employee without pay as part of a progressive discipline process unless the employment contract explicitly or implicitly permits such a method of discipline.
Prepare a letter of suspension that includes:
- The length of the suspension
- The date on which the employee may return to work
- Restate the contents of the written warning
- Indicate the behaviour that has led to the suspension and the necessary changes that are required
- State the consequences of not making the necessary changes upon return to the job
- Provide the employee with information about appealing the discipline and the timeframe in which to do so
Ask the employee to sign a copy of the letter of suspension confirming that s/he has received, read, discussed and understood the reason for the suspension. If the employee refuses to sign, make a note that the employee refused to sign. Give the employee a copy of the letter of suspension and place a copy of the letter of suspension and the employee's confirmation of receipt in the employee's personnel file. If the employee refused to sign, make a note that a copy of the letter was given to the employee.
Depending on the nature of the misconduct, the employee may receive a series of suspensions if the behaviour is not corrected. In addition, the final suspension might be termed as one "last chance" to correct behaviour before the final step in the process, termination of employment, occurs.
Stages of progressive discipline: termination
At the termination stage, the manager/supervisor should meet with the employee to inform the employee that his or her employment with your organization has been terminated for cause. The manager/supervisor should have a witness present at the meeting. A letter confirming the termination of employment should be given to the employee.
For more information about termination, read the HR Toolkit section on Termination of an Employee.
Place a copy of the termination letter in the employee's personnel file.
Other issues regarding documentation
For each step of a progressive discipline process, it is important to fully document the situation and retain all documentation in the employee's confidential file. For each incident create a factual document that contains information such as:
- The employee's name and job title
- Others who were involved in, or witnessed, the situation
- Where and when the incident took place including date, day and time
- Documentation of the problem including a factual account of what happened and why it was a problem
- What policies or rules were broken
- What was the consequence of the behaviour to other employees or the organization
- Changes that are required to correct the problem
- The date by which the change/improvement must be made
- The consequences of not making the necessary change
- Date the documentation was written up
- The signature of the manager/supervisor who wrote up the documentation
Place the documentation of the incident in the employee's personnel file, remembering that all employees have the right to read their own personnel file. The documentation of an incident that is kept on file should not contain information that has not been addressed with the employee.
If discipline results in a termination of employment, your organization may be faced with a lawsuit. Others will then read all documentation. For this reason it is very important to verify details, document facts and avoid emotional or editorial comments in any documentation.
Next Section: Employment Termination