When employees fail to adhere to the reasonable standards of behaviour expected by employers, one response is to take disciplinary measures. While it is certainly possible — and appropriate in some circumstances — to combine discipline with performance management, in fact, discipline and performance management are distinct.
Employers should not issue discipline for non-culpable behaviour, and as such, employers would not find a proper rationale for discipline in an inability to perform the job related to an illness, disability, or lack of training.
Discipline – Purpose and Behaviours Requiring it
Discipline in the workplace serves a specific purpose, i.e., on the one hand, to correct behaviour on an individual level, and on the other, to reinforce expectations and standards on a general level, specifically in the context of certain behaviours and conduct that require it. Below are three typical examples.
First, an employer may be required to respond with discipline to attendance issues, that is, where absenteeism is not accompanied by a reasonable excuse. This reasonable excuse will depend on context, e.g., legitimate illness.
Second, discipline may be required in the context of sub-standard work product or work performance. Examples include missing deadlines or very poor quality of work. Before issuing discipline on these grounds, it is best to ensure that the proper resources are available and that proper training has been provided. Once that is cleared, employers may want to pair disciplinary and performance management responses.
Third, employers can respond to specific "bad conduct" with discipline. Bad conduct could consist of recklessness that causes injury or loss, or it could be more direct, taking the form of theft or dishonesty, disclosure of confidential information, unlawful acts on company property or when an employee is representing the company, conduct towards management or to other employees, or violation of company policies and procedures.
The Employer's Investigation
When an employer suspects the need to intervene with effective discipline in order to correct such behaviour, the best place to start is with an appropriate investigation. The purpose of this investigation is to ultimately conclude whether it is more likely than not that the employee engaged in behaviour that warrants discipline. The following steps should be taken in order to achieve that purpose:
- Policy requirements. What are they vis-à-vis this employee? Were they properly communicated? Were they understood?
- Past correction of inappropriate conduct. Is this the first incident of such behaviour? Was correction given in the past?
- Training. Was the employee appropriately trained at the outset of employment relationship? Is there a requirement for any re-training?
- Witnesses. Who has witnessed the behaviour? Have they been consulted? What is their knowledge of the matter? Has the veracity of the information provided by the witnesses been confirmed?
- Union representatives. Is this a unionized context? Are there any obligations under the collective agreement that require involvement of a union representative?
- Criminal issues. Is the behaviour suspected to cross into the criminal realm? If so, then legal counsel should be consulted before meeting with any witnesses.
- Document preservation. Are there documents that are relevant to the behaviour and the eventual disciplinary next steps? From whom should these documents be obtained? Did any leads come from the information provided by the witnesses?
The Appropriate Penalty
Having established that the conduct warrants discipline, the next step consists of determining the appropriate penalty. Disciplinary measures will typically follow a progressive pattern (i.e., verbal warning, written warning, suspension of varying lengths, demotion, and finally discharge or termination of employment.) That being so, not every instance requires a progression of discipline. Usually, the severity of the discipline will be significantly influenced by the severity of the conduct.
However, there are several factors that should be considered when determining the appropriate penalty:
- Seriousness of the conduct. Was the conduct wilful? It is often the case that deliberate actions require stricter discipline than careless actions.
- Consequences. What is the nature of the harm or damage that has resulted, or may result, from the bad conduct? The more severe the consequences, the more severe the discipline should be. Although the focus is on the conduct, the strength of the employer's position is typically reinforced where actual consequences have resulted (as opposed to theoretical consequences).
- Length of service. How long has the employee been with the employer? The length of service may impact the appropriate level of discipline, particularly in discharge cases.
- Past record. Does the employee have a disciplinary record? What discipline was imposed? The principal intention of discipline is to correct the behaviour. For that reason, penalties should be progressive/increase in severity. If the conduct in question is similar or directly related to past bad conduct, then the penalty should be increased.
- Employer-employee relationship. Are there any specific details to consider; for instance, that the employee held a position of trust in the organization?
- Company rules / collective agreements. Do either of these speak explicitly to the appropriate penalty on similar facts? What has been the organization's past practice in response to analogous conduct? Consistency of punishment is a very important principle when it comes time for an employer to defend the discipline that was imposed. It also promotes certainty and a sense of fairness in the workplace.
- Employer's potential role. Did the employer play a role in the situation? Was the employee appropriately supervised? Was such behaviour in any way condoned previously? Was there any failure to warn employees that this type of behaviour is inappropriate? The presence of these factors can require a reduced penalty, or may even exculpate the employee from discipline.
Delivering the Discipline
Delivery of the discipline should consist of a letter and a meeting with the employee, both of which have the purpose of explaining the decision that has been made. The communication should include:
- the conclusion resulting from the investigation regarding the behaviour in question;
- reference to any relevant rules, policies or provisions in a collective agreement;
- a statement of the penalty imposed;
- a warning of subsequent discipline in the event of future inappropriate conduct;
- suggestions for how the employee can improve; and
- information regarding available resources to assist with preventing a recurrence.
Lessons for Employers:
One of the most important steps in administering effective discipline is to consider both whether you have the facts correct, and whether you can establish those facts with appropriate evidence. Whether it is in a unionized context through a grievance, or in a non-union context as a result of litigation, an employer can easily find itself in the position of having to prove and justify the discipline taken, and to prove the foundation for that discipline on a balance of probabilities. In other words, the employer will have to establish that it is more likely than not that the facts occurred in the manner in which the employer believes. It is very important that the road to discipline starts with an effort to ascertain, as much as possible, the true facts of the matter with an appropriate investigation, and then with a careful consideration of the appropriate penalty and effective delivery of the discipline to the employee.
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.