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<xTITLE>Progressive Discipline, the Misunderstood Frontier - Part 4</xTITLE>

Progressive Discipline, the Misunderstood Frontier - Part 4

by Bruce Ally, Maurice Ford
April 2021

Part One

Part Two

Part Three

Given this is our fourth article by way of a recap we remind the reader that the third article dealt with some of the challenges faced by smaller companies associated with training  management staff and agents. In this article we will focus on the imperative of smaller companies and indeed larger companies adopting progressive disciplinary protocols that are designed and accurately implemented throughout the organization. 

DRAFTING AND IMPLEMENTATION OF PROGRESSIVE DISCIPLINE IN THE WORKPLACE

Larger companies in the industry have access to formalized systems including human resources departments (HR). The primary function these departments are charged with is to recruit, onboard, discipline or terminate employees. In order to affect these tasks policies and procedure manuals are developed. These manuals codify the behavioral expectations of the employee and outline the manner in which progressive disciplinary procedures are implemented. These protocols are circulated throughout the organization with the view of informing employees of the codes of conduct that apply. Depending on how big the company is there may be scheduled training that reinforces the fact that the company has adopted these measures, and should employees contravene these new policies this would result in consequences up to and including dismissal… 

For both large and small companies, it is essential that first and foremost all the employees, including managers, supervisors, and line workers be made aware of the companies plan to have its formulated operational guidelines implemented.  Irrespective of the size of the company it is best to utilize the services of an expert most often this is achieved.by hiring an employment lawyer who can address the protocols associated with progressive discipline. S/He should be able to explain the policy to all staff. Having drafted the document should make it easy to identify and define progressive discipline in simple language as well as the various steps that will be taken by an employer should such an occurrence of misconduct by an employee warrant it. Progressive discipline is an employee disciplinary system that categorizes a graduated range of disciplinary steps that an employer can administer to employee based on their performance or lack thereof or their conduct or rather misconduct prior to terminating the services of the employee. Clearly, disciplinary measures will range from mild to severe, depending on the nature and frequency of the problem but unless the employer follows these steps, they are likely to be penalized by a court.

 

Progressive discipline follows a four-step process as follows

  • Purpose. ...
  • Step 1: Counseling and verbal warning. ...
  • Step 2: Written warning. ...
  • Step 3: Suspension and final written warning. ...
  • Step 4: Recommendation for termination of employment. ...
  • Appeals Process. ...

Although designed as a series of escalating steps, employers may start at a higher step, including termination, for the most serious infractions. A supervisor should be familiar with any applicable collective bargaining agreements, organizational personnel policies and practices, and should at all times consult with Human Resources staff if at all possible, to affect the process as opposed to instituting a disciplinary action. The major benefit from this is that it provides a barrier between the manager/ supervisor and the employee such that at some later time the working relationship is not or at least less polarized.

 

The 4-Step Progressive Discipline Template

In any organization whether a small business or a large corporation a good manager or supervisor must take time to ensure the employee understands job responsibilities and organizational expectations.  When problems occur, the manager or supervisor should offer sufficient coaching or counseling to “course correct” and fix a minor issue before it becomes a problem. When proactive coaching does not work, we suggest using the following four steps:

Step 1: Verbal Warning

In this step, the manager or supervisor will inform the employee of the concerns as it relates to safety in the work setting or the employee’s conduct. This is done in a safe setting one conducive to mutual respect and at a time that s/he can listen to any information the employee provides. If the manager or supervisor believes discipline is warranted, the employee may be given a verbal warning. The warning briefly outlines the problem to be corrected and informs the employee what needs to be done. The employee should also be warned that failure to correct the problem and any further violations of rules/policies may result in further discipline, up to and including termination—a warning that should be repeated with each subsequent discipline. Written documentation of the verbal warning should also be shared with the employee and noted in the employee’s personnel file: typically, a memo with the subject line “Verbal Warning” suffices. A timeline for making the necessary correction should also be included (Wright, 2016) .

Step 2: Written Warning

When an employee fails to improve, repeats behavior that led to the verbal warning or commits a new, more serious offense, a second written warning is issued. The manager or supervisor will again meet with the employee and share the concerns around the alleged problematic behavior. The employee is given an opportunity to tell her or his side of the story. If a determination that discipline is warranted, a written warning may be issued. The written warning should always be delivered verbally and in writing to the employee, and then copied in a memo to the personnel file with the subject line, “Written Warning”. The “written” versus “verbal” label signifies the more serious nature of the action.

(Note: Sometimes an employee will fail to improve performance or commit a new infraction, but it is deemed not serious enough to escalate the discipline. In these cases, an employee can be given additional verbal warnings.) (Wright, 2016)

Step 3: Suspension

When an organization has a Step 3 discipline that includes suspension without pay, a supervisor should generally consult legal counsel prior to proceeding. Employee discipline that involves a loss of pay also requires a “Louder mill hearing” be held between the employee and manager or supervisor.  What exactly is a “ Loudermill hearing?” In Cleveland Board of Education v. Loudermill, (1985), the Supreme Court of the United States held that employees with a property interest in their jobs are entitled to certain due process rights prior to termination (Corbin & May, 2012) . These rights include oral or written notice of the charges against them, an explanation of the employer's evidence, and an opportunity to be heard in response to the proposed action. Loudermill rights are applicable in instances when the employee may have a loss of pay, such as suspension, termination, or demotion (Corbin & May, 2012). 

In Canada, there is a tendency to focus more on legally providing employees with their ”due process rights” under the law as compared to the United States in which they specify that process according  to a case law established in 1985.  

The employee should be given written notice of the alleged violation(s) along with an explanation of the evidence and time and date for the hearing. The employee is then given a chance to correct any factual error and provide any mitigating information at the hearing, information that manager and supervisor must consider prior to rendering a decision. The manager or supervisor should include an additional person in the meeting, such as another supervisor/manager or Human Resources staff, to assist in notetaking and to provide a witness.

It is often a good practice to wait at least a day or two before rendering a decision. ‘Sleeping on it’ conveys that the employee’s information was taken seriously. The manager’s or supervisor’s decision should be in writing and should clearly and unequivocally explain the facts that led to the conclusions especially those that support the discipline. The manager or supervisor should meet with the employee to deliver the memo and briefly explain the discipline. Copies of the written notice and the disciplinary notice should be placed in the employee’s file (Wright, 2016).

Step 4: Termination

Finally, at Step 4, legal counsel, such as, an employment lawyer should be consulted prior to finalizing any investigation or delivering any written materials to the employee. Moreover, a Louder mill hearing is generally considered prudent and required prior to terminating an employee. Managers and supervisors should always be cognizant that termination of an employee may and can lead to a more formal legal process, therefore, it is important that they take care in preparing any documents and in conducting any meetings with the employee.  A manager or supervisor may allow a second suspension before termination (Wright, 2016).

Conclusion

In conclusion, the often-desired outcome of the progressive discipline process is to allow employees to self-correct poor performance and to retain productive workers. However, sometimes depending on the severity of the circumstances the best outcome is a termination. A clear and consistent progressive discipline policy is a useful tool for retaining good employees and for fairly terminating those who fail to meet employment standards. For small companies to continue to grow and develop they often require making significant changes such as acquiring expertise in specific areas as deemed necessary based on the company’s needs. Training of current staff or the hiring of new staff will pose new challenges for such companies and particularly for their managers and supervisors who will need to be training in how to manage and discipline staff according to human resources policies and procedures like progressive discipline if they hope to avoid or to circumvent a wrongful dismissal suite by one or more disgruntled employees.     

It must be remembered that the authors clearly are cautioning the reader that this article will not replace the need for a lawyer and further we are not providing legal advice. Our knowledge in this subject area comes from the fact we have been mediating employment matters for more than a quarter of a century. It is our hope that by discussing these workplace occurrences and concepts we have in this article inspired employers to ensure that they are taking the necessary steps to avoid a claim if and when a workplace issue arises as it is inevitable.

ENDNOTES

Deutsch, M., & Coleman, P.T. (2000). The Handbook of  Conflict Resolution: Theory and Practice. San Francisco: Jossey-Bass Inc.

Employment Standards Act 2000. https://wwwlabour.gov.on.ca/enlish/es

Corbin, J., & May, J. (2012, March 1). MRSC Local Government Success. Retrieved from Taking the Mystery out of Loudermill Meetings: http://mrsc.org/Home/Stay-Informed/MRSC-Insight/Archives/Taking-the-Mystery-out-of-Loudermill-Meetings.aspx

Gjema v. Mercury Specialty Products Inc., 2012 MBQB 83 (Manitoba 2012). Retrieved from http://canlii.ca/t/fqncx

Ontario Ministry of Labour-https://www.ontario.ca/document/your-guide-employment-

standards-act-0/termination-employment 2018.

Shakur v. Mitchell Plastics, 1008 (Ontario Supreme Court 2012). Retrieved May 05, 2015, from http://canlii.ca/t/fq4qc

Wright, M. (2016, October Sunday). A 4-Step Approach to Progressive Discipline. Retrieved from MRSC Local Government Success: http://www.mrsc.org/Home/Stay-Informed/MRSC-Insight/October/A-4-Step-Approach-to-Progressive-Discipline.aspx

 

Biography



Bruce Ally is the founder of A Place for Mediation. As a mediator in private practice he has conducted in excess of 4000 matters. He is an instructor in the Lawyer in Negotiation course at Osgood Hall Law School, and a facilitator in the Advanced Mediator Program and the Workplace Elective at York University. He is currently on the Attorney General Roster and a Member of the Workplace Fairness Institute.


Maurice Ford is a former educator who worked as a mediator and investigator for the Ontario Human Rights Commission. After retiring, he has taken on the role of a senior mediator and associate at A Place for Mediation. He is also on the Attorney General Roster and is certified by the Workplace Fairness Institute as a Workplace Fairness Analyst.