Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>Progressive Discipline, the Misunderstood Frontier - Part 2</xTITLE>

Progressive Discipline, the Misunderstood Frontier - Part 2

by Maurice Ford, Bruce Ally
February 2021

Part 1

In our previous article we hope to have demonstrated that the need for discipline needs to be carefully considered and approached with caution given the legal implications and potential consequences to the employer. Since most employers will be faced with challenges from employees on an ongoing basis it is our intention to explore these ideas and expand on the concepts. To further explore the progressive discipline in the workplace we would like to examine a case highlighting discipline in the workplace and how the manager inappropriately handled such an incident.

Workplace Discipline

In an exemplary situation an employee named Pat has been working at a metal production factory for the last 10 years as a line production worker. During Pat’s employment there has never been a need for disciplinary action, rather Pat has only received praise on numerous occasions for dedication and commitment from management. Approximately 6 months ago a new hire named Alex has been making culturally insensitive comments that were directed towards Pat. Although initially offended Pat chose instead to ignore it in the hope it would stop. Despites Pat’s best intentions comments continued to escalate as Alex proceeded to make more offensive comments.  For Pat these comments eventually reached a boiling point and as a result Pat pushed Alex during one of their shifts. Although Pat quickly apologized to Alex for the push the manager was a witness to the incident and quickly intervened before the conflict could escalate. After Jamie the manager confirmed that Alex was okay, the manager then proceeded to inform Pat that the behavior was inappropriate and as a result the consequence was termination. Alex on the other hand was not given any discipline, despite having a role in the conflict. Pat was aware of the factories none violence policy but was taken a back around the consequences of “termination” for only a minor push, more so considering that other employees who had got into serious conflicts were only suspended for a day or two.

Managements Pressure in Conflict

What the previous situation shows is that one could argue that the termination of Pat was uncalled for and overly severe. Indeed, Jamie’s reflexive response in automatically terminating Pat should be noted. In all fairness, Jamie was not necessarily a poor manager but a manager that had not been trained appropriately for his role as a manager. It is significant to note, as in many work environments that Jamie had been with the company for many years and when the previous manager retired he was offered the manager’s position based on his demonstrated loyalty and meticulous work performance. Managers are charged with the need to ensure the safety of all persons on their shift what occurred was essentially a knee jerk reaction on Jamie’s part to the incident. Reasonably current rulings of similar situations would seem to agree with the point of view that Pat’s dismissal was overly severe. Unfortunately, Jamie the manager would not have been knowledgeable of these current court decisions and may only be viewing the situation from a perspective of managing the shift in a safe and productive manner. Recent case law, such as, (Gjema v. Mercury Specialty Products Inc., 2012) found that Gjema, the manager, was dismissed without just cause despite his actions of pushing a defiant and aggressive subordinate. Similarly, it was found that a dismissal was overly excessive and disproportionate. Again in (Shakur v. Mitchell Plastics, 2012) it was found that Shakur, who had a clean disciplinary record, was not dismissed with just cause for his actions of slapping another co-worker during a verbal altercation. This leads to the conundrum of what is a manager supposed to do and how do they maintain control of their shift and their authority with the employees.

Several question arise as to why a manager would risk terminating Pat for a push? There is no simple answer to those questions. Tin fact there are a multiplicity of factors impacting these decisions, one being that the manager is often under pressure to set and maintain stability for their workers. In order to ensure a safe working environment for all people on their shift. Therefore, by terminating Pat, the manager believes that a precedent is being set for other workers that will deter them from Pat’s action.  Secondly, the manager is at risk of being disciplined by their owner’s if they cannot control their own staff.  Often if an owner is of the opinion that their manager cannot control their employees, they may be incline to find a replacement. On its own this puts a tremendous burden on the manager to maintain discipline amongst the employees in order to ensure a tolerable environment in the workplace. And thirdly the manager is charged with maintaining productivity which cannot occur if employees are not adhering to their work routine. 

Conclusion

In conclusion, the pressure on the manager and employer to ensure stability can be a partial reason for overly harsh discipline including termination that occurs in a workplace.  This been said there could be numerous other reasons why employers over react in their disciplinary actions. For instance, as previously cited, it is possible that the manager like Jamie may not have been properly trained to deal with disciplinary actions. In larger companies often this is a function of the human resources department although the manager is still expected to manage the employees on the floor. This differentiation often leads to human resources department getting the training and the managers are often over looked. This absence of training can then naturally lead to disciplinary actions that are not in accordance with the law and thus are not appropriate for the situation. Therefore what needs to happen is a more entrenched training regime for managers. 

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

Part 3

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

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

Shah v. Xerox Canada Ltd., CanLII 2317 (Ontario 2000). http://canlii.ca/t/1fb4v 

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

 

Biography



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.


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.