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<xTITLE>Progressive Discipline, the Misunderstood Frontier - Part 1</xTITLE>

Progressive Discipline, the Misunderstood Frontier - Part 1

by Maurice Ford, Bruce Ally
December 2020

Introduction

In today’s modern workplace there is always a potential for a conflict to arise given the fact that we live in a global village with increase communication, hence the potential for increased conflict, (Deutsch & Coleman, 2000).  During moments of conflict employers are faced with making a decision to address the conflict. Conflicts can come in many forms ranging from lateness, absenteeism, to direct insubordination and can range from minor to major. If a conflict has passed the serious misconduct threshold, then the employer is challenged with an appropriate response in some cases he or she may feel it necessary to terminate the employee. Alternatively, an employer could pursue a course of progressive discipline, which has potential benefits to both the employer and employee. Consideration in this area includes the search cost of interviewing and associated training cost which often times outweigh the benefit of reorienting the employee on a remedial course.  Despite these benefits progressive discipline is often ignored as an option to deal with conflict, and instead termination of the employee is often the choice due to inadequate preparation or training of the managers. This article forms the first in a series examining progressive discipline. In this specific issue we will focus on the use of progressive discipline in employment matters, with a view to considering some of the factors impacting on the employer. This is predicated on a workplace occurrence which may require their decision-making skill unless properly trained there is often the potential for an incorrect analysis and thus causing an employer to terminate an employee. 

How Should the Employer React to a Challenge in the Workplace?

It must be remembered that the employer is challenged with complying with the applicable regulations mandated by the government. To this end employers are often faced with interpreting regulation such as the Employment Standards Act. 

Unfortunately, under the past and current (Employment Standards Act, 2000) (ESA) there has been an absence in defining the use of disciplinary actions and progressive discipline. This occurs despite it being embedded in the daily functions of employment matters. Therefore, any employer seeking guidance with respect to the appropriate course of action instead of turning to the ESA would need to refer to their company’s workplace policy to find guidelines to use for disciplinary actions. 

This forces the employer especially in small companies with limited finances to blindly create a set of rules which comply without the benefit of legal advice. Larger companies who have the luxury of access to their lawyers may still be faced with difficulties in that the terms of some employees may predate the current changes in the ESA. Given these challenges clearly the options available to employers will vary based on both their size, length of time they have been in operation and access to financial and legal resources. Thus it is not surprising that these policies will differ between workplaces but some of the common themes of the use of discipline in employment matters are based on the foundation of clarity, consistency, and appropriate level of reaction.  

Discipline can be given in various manners, which include verbal and written warnings, demotions, and suspensions. Regardless of the type of discipline, an employer should always consider tailoring the discipline so that it is appropriate to the action of the employee’s behavior. Conversely for an employee there is also a concern that the employee is aware that certain behaviors would be met with discipline within the workplace policy, as such it becomes the employee’s responsibility that they become aware of these policies.  

Each work place policy will be different depending on the type of employment. The guidelines and criteria for discipline may also vary dependent on the employee’s behavior. Nevertheless, one common component of a workplace policy should be that the onus can be on the employer and not employee to prove a disciplinary action was appropriate. The employer can gain invaluable resources by having trained human resource representatives and even in cases where the company is too small to have a Human Resources Department with a working knowledge of how to access case law from free sources, such as, CanLII can often point them in the right direction. Especially since we find that in cases such as Leung v. Doppler Industries Incorporated, 1995, which clearly states that the onus is on the employer to find cause in a dismissal. Similarly, in a parallel labour dispute of (International Union of Operating Engineers, Local 793 v. Procrane Inc, 2007) we are told  in a decision that the employer has the onus of justifying discipline.

Despite the fact, the ESA does not properly define appropriate disciplinary actions, that is not to say that it does not recognize it in other ways. Hence, an employer should still understand the significance of using proportionate disciplinary actions, because it is relevant to the term constructive dismissal, which is referred to on numerous occasions in the ESA. Thus employers needs to be aware of their legal obligations when attempting to terminate an employee, this is clearly outlined and is defined by the Ontario Ministry of Labour (2018), constructive dismissal is said to occur when an “employer makes a significant change to a fundamental term or condition of an employee's employment without the employee's actual or implied consent.” From this definition stems the concern an employer may face when disciplining an employee. If an employee feels that their discipline of a demotion did not have cause, then they may quit in the hopes of claiming constructive dismissal.  The importance of having a proportionate discipline towards an employee is evident in and exemplified by cases such as (Shah v. Xerox Canada Ltd., 2000) which found constructive dismissal based on the unjustified disciplinary actions of written warnings and probation. Consequently, the use of having a mechanism for administering discipline, which is justified and proportionate, could mean the difference between a constructive dismissal claim being successful or not.

Conclusion

In this article we hope we have demonstrated that the need for discipline needs to be carefully considered and approach with consideration for the legal implications and potential consequences to the employer. Given that 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. 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 the concepts we have in this article brought the old adage, “a word to the wise should suffice” and therefore inspire employers to ensure that they are taking the necessary steps to avoid a claim if and when a workplace issue arises as it inevitably will.

Part 2

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

International Union of Operating Engineers, Local 793 v. Procrane Inc, CanLII 55932 

(Ontario Labour Board 2007). http://canlii.ca/t/1v8mc

Leung v. Doppler Industries Incorporated, CanLII 2530 (British Columbia Supreme Court 1995). http://canlii.ca/t/1dq9p 

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 
 

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.