Defensible Discipline and Terminations for Cause

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1 Defensible Discipline and Terminations for Cause Introduction No manager would say that imposing discipline is their favourite part of the job, but it is unavoidable. Properly handled discipline can correct problems in the workplace, can provide support for a decision to terminate the employee, and can ultimately help protect the employer from liability. In order to handle discipline properly though, managers and supervisors have to have a clear understanding of some basic principles. The following is presented for informational purposes only, and does not constitute legal advice. Employers are advised to seek legal advice specific to their circumstances. 1. Discipline is Different from Performance Management Employees need to hear evaluations of their performance. If they are doing well, they need to be told so. If there are problem areas, they will never improve if they are not addressed with employees. Performance reviews can reveal problems that need to be addressed, but taking corrective actions to address those problems is a very different exercise from imposing discipline for specific culpable misconduct. The distinction lies in the difference between non-culpable (innocent) and culpable (blameworthy) behaviour. The employee who tries to follow the rules but is just not great at their job is different from the employee who chooses not to follow the rules. In the first case, the problem can be addressed through performance management, but performance management will not do a thing for the employee who chooses to break the rules. Behaviour of this sort must be managed through discipline. 2. Discipline should be based on Clear Workplace Rules and Standards To defend a decision to discipline an employee, the employer has to be able to show that the employee knew about the rule he or she was accused of breaking, and that the rule was reasonable and fairly and consistently enforced. Where an employee is disciplined for a breach of a rule that is rarely or never enforced, it looks like the employer targeted the employee. 3. Discipline should be Timely Discipline should be imposed as soon as possible after the misconduct alleged is discovered by the employer. The further apart the discovery of the misconduct and the discipline are in time, the more difficult it will be to defend the decision to discipline the employee. The need to impose discipline in a timely way, however, must be balanced

2 against the need for a fair investigation. Discipline will not be upheld where it looks like the employer rushed to judgment. 4. Discipline should be Supported by a Solid Foundation of Investigation To uphold discipline, an employer has to be able to show that it conducted a thorough and unbiased investigation of all the circumstances of the alleged misconduct before deciding to impose discipline. As a result, the manager or supervisor responsible should investigate the W5 (who, what, where, when and why) of the alleged misconduct. A manager or supervisor should talk to everyone who may have witnessed the incident, including the employee accused of the misconduct, review any documentary or other evidence, and consider how strongly any circumstantial or indirect evidence points to the employee as having committed the misconduct. At every stage of the investigation, the manager or supervisor should record his or her notes and conclusions, and make sure to date the notes. Documentation will be important when it comes time to defend the decision to impose discipline. 5. Discipline should be Responsive to the Circumstances If the manager or supervisor decides after investigating that the employee committed the alleged misconduct, he or she next has to decide what the appropriate penalty for the misconduct would be. That determination must be made in all the circumstances, including the severity of the misconduct, and whether there are any aggravating or mitigating factors that should be considered. Severity of the Misconduct An employee who punches his supervisor must be disciplined more severely than an employee who arrives late at work, all else being equal. Breaches of safety regulations, misconduct directed at customers, and harassment of employees are all types of misconduct which require a stronger response. Aggravating Factors Aggravating factors are those circumstances that make the employee s misconduct seem more serious, or more blameworthy. These can include: A prior record of misconduct particularly where the misconduct is similar Premeditation if the employee planned and carried out the misconduct it will be more serious Denials or cover-ups if the employee refuses to admit to the misconduct in the face of the evidence, or has tried to hide the misconduct, a more severe response will be warranted

3 Mitigating Factors Generally speaking, mitigating factors are those circumstances that make the employee s misconduct seem less serious. These can include: Isolated incident the misconduct was out of character for an otherwise good employee Lack of premeditation the misconduct was a spur of the moment act, rather than a planned and deliberate one Reasonable excuse the employee can explain the misconduct in a way that diminishes its seriousness Rehabilitative potential the employee apologizes and shows remorse for the misconduct Length of service the employee has a long period of good service with the employer 6. Discipline should be Progressive Remember that the purpose of discipline in the workplace is to correct a problem, never to punish the employee. To that end, an employer should begin by imposing the minimum level of discipline necessary to correct a particular incident of misconduct. If the employee repeats the misconduct, then this shows that stronger measures are needed. However for very serious incidents of wrongdoing, progressive discipline may not be appropriate and either a suspension or termination may be necessary. Many types of discipline can be imposed. The usual pattern of progressive discipline is as follows: Counselling/Verbal warning Written warning Short suspension (1-3 days) Long suspension (5 or 10 days) Discharge The more steps you follow before discharge, the more defensible the ultimate decision to terminate will be. Verbal warning At the lowest end of the range, counselling or a verbal warning may be appropriate where the misconduct is minor, and/or it is a first offence. Counselling involves a verbal discussion between the manager/supervisor and the employee, in which the employee is told of the rule, the breach, and the employer s expectations for corrective action going forward. Nothing is placed in the employee s file, although the manager/supervisor should keep a note of the conversation for future reference.

4 Written warning A written warning may be warranted for a more serious first offence, or where a verbal warning has not improved the behaviour. A written warning consists of a letter which is placed on the employee s file, and which outlines: The misconduct The rule or standard breached The corrective action required The consequences of continuing or repeating the sub-standard behaviour Suspensions Where a written warning fails to improve the employee s behaviour, it may be necessary to take more severe action. An employee may be suspended without pay for a period as a form of discipline. Be aware that some court cases have held that an employer has no right to suspend its employees unless it is set out in the employment contract or the employer has an established practice of doing so. Make sure that you include a statement in the employment contract that employees may be disciplined for cause, including warnings, suspensions and terminations. Discharge In Union circles, discharge has been colourfully described as industrial capital punishment. It is the last recourse, after all other efforts at correcting the employee s behaviour have failed. In limited circumstances, it might also be imposed in response to a first offence, where the misconduct was of a type that the employer cannot tolerate in the workplace, for example theft, dishonesty, or physical assault. 7. Imposing Discipline: Teach, don t Scold Correct, don t Punish Meeting with an employee to impose discipline is challenging. Keep the following tips in mind as you sit down with an employee to explain why they are being disciplined. The tone of the meeting should be calm and professional. If the manager/supervisor is concerned about the employee s reaction, a third party should attend, for example, another manager or supervisor, someone from the human resources department, or the manger s superior. The manager/supervisor should ensure that the employee is informed of the following over the course of the meeting: The misconduct for which s/he is being disciplined The rules or standards that have been contravened The disciplinary consequence being imposed The reason for the severity of consequence assessed The corrective action the employee is expected to take and the period of time for improvement The consequences of failing to correct his/her conduct

5 The discipline imposed should be recorded in a letter which is delivered to the employee and placed in the employee s file after the meeting. 8. Termination for Just Cause: Industrial Capital Punishment If discipline has failed to correct a pattern of misconduct, or if an employee has engaged in truly serious misconduct, you may have to terminate their employment. An employer can always terminate an employee for just cause. Where a termination is for cause, the employer does not need to pay notice or severance. Instead, the employer need only pay wages actually earned to the time of termination. Just cause for termination is similar to just cause for discipline, but not exactly the same. In the termination context, the courts will assess just cause on a case-by-case basis. What is usually required is a fundamental breach of the employment contract, or a pattern of conduct that shows disregard for the basic contract of employment. It is easier to establish just cause after a pattern of misconduct than on the basis of a single serious event. It can be difficult to prove just cause in court, if you are forced to that is why it is so important to keep proper documentation of any disciplinary steps taken or investigations carried out! Serious Misconduct In order to justify summary termination, a particular incident of misconduct must be so severe that it amounts to a repudiation of the employment relationship. This is a difficult standard to meet. Incidents of assault in the workplace, conviction for a serious criminal offence related to the employee s duties, or serious misconduct involving theft or other dishonesty may justify summary termination in the right circumstances. Be aware though that the courts will consider the same mitigating factors set out in section 5 above in determining whether or not termination was justified. Failing to prove just cause carries financial consequences not only can you end up paying in lieu of notice of termination, you might also pay aggravated damages if the allegation is not well-supported. Culminating Incident Where an employee has a checkered or poor disciplinary record, you may be able to terminate for cause on the basis of a final culminating incident, or last straw, even where the incident would not normally be so serious as to warrant discipline. In addition to the requirements above for defensible discipline, in order to support a termination for cause on the basis of a culminating incident, you have to show that:

6 The incident actually occurred; The offence would normally warrant discipline; The employee was warned that another incident would lead to termination; The culminating incident was investigated thoroughly and objectively. Conclusion: Discipline and Termination Checklist One final point: where you think you have just cause to discipline an employee, stop and ask yourself the following questions, answering as honestly as possible: Was the rule or work order that the employee violated a reasonable one? Was he/she given adequate notice that his/her conduct was improper? Was a sufficient investigation made? Was the investigation fair? Was the misconduct proved? Did the employee receive equal treatment compared with other employees? Is the penalty chosen appropriate in all the circumstances? If you can satisfy yourself on these questions on the basis of the points reviewed above, then you will be in a position to impose defensible discipline, even up to termination for cause.