Being fired or getting terminated for “just cause” is only one form of discipline available to Ontario employers. Often, though, termination for cause is too harsh in the circumstances and therefore not available as an option. It is important for both employees and employers to understand what other types of discipline are available and how to act in accordance with the principles of “progressive discipline”.
This article will be focusing on discipline in the workplace aside from termination. For more information on termination see one of my earlier articles: Termination of the Employment Relationship in Ontario » Legally Speaking.
What is Progressive Discipline?
Progressive discipline is a process used to deal with any job-related behaviour that does not meet expected and communicated standards or policies regarding job performance, absenteeism or lateness, or other minor misconduct. The primary purpose of the progressive discipline doctrine is to help an employee understand that a performance problem exists and to offer opportunities for improvement. The concept behind progressive discipline is that where an employee repeatedly fails to meet the expectations of the job, the disciplinary action against him will begin with mild correction action and gradually move to more serious actions as each incident occurs — eventually permitting an employer to terminate for cause.
The law does not require employment contracts to include the employer’s approach to progressive discipline however, best practices suggest an employer should set out their approach to progressive discipline in a well-written and well-communicated policy. In this regard, they are able to refer to it specifically as necessary.
Levels of Disciplinary Action
Basic progressive discipline policy provides for four levels of discipline: verbal warning, written warning, suspension and termination. There is no one single approach applied — approaches vary depending on the company and collective bargaining agreement. For example, the discipline for a first offence may be counselling in one company yet a warning in another.
Overall, effective discipline helps to correct employee behavioural issues, increase productivity as well as help to protect a company against wrongful termination lawsuits.
Levels of disciplinary action are as follows:
- Verbal warning
- Written warning
- Performance improvement plan
- Temporary pay cut
- Loss of privileges
Termination for cause should be considered as a last resort. It is challenging to prove terminations are justified and courts only do so in the clearest of circumstances. In exceptional circumstances, immediate termination for an act of significant or severe misconduct may be appropriate but in almost all cases, employers should be guided by the principle of progressive and corrective discipline.
Rather than straight dismissal, the goal of progressive discipline is correcting poor behaviour and creating a better and more productive employee.
What should employers do?
In instances where an employee’s performance or conduct is at issue, the employer should clearly provide the employee with the following:
- A clear explanation of the problem
- A list of steps that should be taken by the employee to address and correct the problem
- Assistance to the employee to help him address and correct the problem
- A reasonable time frame in which the problem is expected to be corrected
This process applies to any of the disciplinary action levels – i.e. Verbal or written warnings, performance improvement plans etc. Employers must give employees clear messages, actionable steps, assistance and reasonable time frames to show improvement during any stage of discipline.
What Forms of Discipline Are Not Appropriate?
Employee discipline is not about dominance or punishment. As a result, in most instances, discipline that is punitive is contrary to employment law. For example, withholding pay or suspending an employee without pay is not appropriate. Subjecting an employee to humiliation in front of coworkers, demotions or cuts in salary/pay are also considered inappropriate forms of discipline. Bullying usually involves repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade or humiliate a particular person or group of people. It has also been described as the assertion of power through aggression. In this respect, it is punitive and not an appropriate form of discipline.
Suspension is a common form of punitive disciplinary action.
According to the Ontario Court of Appeal, an unpaid administrative suspension generally triggers a constructive dismissal “unless it (is) an express or implied term of the contract that the employer (can) suspend an employee without pay.”
The Courts will assess unpaid suspensions with a higher level of scrutiny than paid suspensions. Accordingly, employers should not impose unpaid suspensions unless they are expressly permitted to do so by a contract of employment or the circumstances are such that an unpaid suspension is reasonable. In other words, if an employer imposes an administrative suspension that is neither expressly permitted by contract nor reasonable in the circumstances, they run the risk of liability for constructive dismissal damages.
Courts often look at whether the employee had the opportunity to challenge the suspension before the person who imposed the suspension in the first place. Failing to allow for this may render the suspension a constructive dismissal, wherein the employee may claim for notice for the termination of their employment and the potential for any unpaid wages during the suspension period.
A clear and well-drafted employment agreement or workplace policies and handbooks regarding suspensions will provide both the employer and employee with information on their rights.
How is the appropriate level of discipline determined?
Courts and tribunals expect employers to apply disciplinary measures fairly and consistently, taking into account any specific circumstances of the situation on a case-by-case basis.
Aside from the strict facts of the case, adjudicators consider both “aggravating” and “mitigating” factors in determining the most appropriate type and severity of disciplinary action — especially when an action as serious as dismissal is being considered. Arbitrators weigh the presence, or absence, of mitigating factors in deciding whether to uphold, reduce or rescind a disciplinary sanction.
- Aggravating factors lead to a more substantial (harsher) penalty
- Mitigating factors lead to a more lenient (lesser) penalty
Some examples of employee related factors that affect the level of disciplinary action taken include the following:
- Clean employment record
- No other disciplinary record on file
- State of mind of employee when behaviour came into question (i.e. medical condition; emotional problems, harassment, violence etc.)
- Whether an employee shows remorse during the investigation — i.e. admitting responsibility, offering an apology etc.
- Wilful or Intentional insubordination and/or misconduct
Examples of some of the case related factors adjudicators consider are as follows:
- Was the misconduct intentional?
- Is the employee accepting responsibility for his/her actions?
- Was the infraction an isolated incident?
- Is this a long-term employee?
- What is the work history of the employee?
From Policy to Practice
Policies communicate expectations to staff and guarantee that fair and consistent treatment is served to all. It is important for staff to know from the start what is expected and how their performance will be addressed should it fall short of workplace standards. Policies hold everyone accountable and need to be supported by accompanying procedures.
The following are procedures to support progressive discipline:
On-going operational procedures:
- Hold regular manager training, and make progressive discipline policy review a prominent part of that training
- Create a standardised form for all managers and departments to use when they write up an employee for a disciplinary infraction. Be sure they fill out the form in full.
- Develop a system that allows easy review of disciplinary write-ups.
- Practice early detection of issues with equal treatment of employees by different managers. Make it a point to ask about this issue during employee reviews.
- Discipline managers if they fail to uphold company policies.
Procedures involving incompetence: Employee lacks the skills or ability to do the job.
- Set out clear, reasonable job expectations in company policies
- Clearly communicate job expectations to all employees
- Bring unacceptable work to the attention of the employee promptly
- Provide reasonable supervision, training and instruction
- Give reasonable warning that failure to meet these expectations could result in dismissal
- Allow for time and opportunity to meet the job expectations
- If not improvement has emerged, dismiss the employee
- Keep complete written records
Procedures involving misconduct: Employee breaks rules for keeping the work place efficient and safe.
- Give the employee an opportunity to tell his/her story about the misconduct
- Collect all the relevant facts surrounding the misconduct
- Give a verbal warning
- Give a written warning
- Suspend the employee
- As a final step in the process, dismiss the employee
- Keep complete written records
Termination of staff should be considered a last resort. The incorporation of progressive discipline in the form of policies, procedures and practices can provide effective corrective strategies to mitigate many behaviour issues and avoid disputes being taken to court. Progressive discipline is a doctrine upheld by Ontario courts, which should be part of a company policy and should be clearly communicated and adhered to.
Contact Justin W. Anisman
Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.