We're all human. Sometimes we make errors in judgment, commit honest mistakes, or falter in our commitments to colleagues, superiors, or ourselves. In the past, federally regulated employers might have taken a strict disciplinary approach to employee mistakes. However, today, employers are expected to take a more constructive and encouraging approach to disciplinary matters.
We call this approach progressive discipline. What is progressive discipline? What are some key steps? When is it best applied, and what are the benefits? Suzanne Desrosiers Professional Corporation is here to answer all these questions and more.
Read this blog post at your leisure. Should any questions arise, be sure to contact our offices. Our phone number is (705) 268-6492. We're always here to answer your questions about workplace regulations, employment law, and more.
What Is Progressive Discipline?
As an employer, you have a vested interest in productivity and efficiency. You want your employees to work well, and you want them to feel good about the work that they do. That said, there are times when their output leaves something to be desired. Maybe the quality of their current work pales in comparison to last quarter, or maybe they've consistently failed to meet company standards. Perhaps they've neglected to abide by company policies when going about their days—they show up late, leave early, etc. These are just a few instances where an employee's poor performance may need to be addressed.
Some employers might feel compelled to make an example of employees who've failed to meet company standards. They might want to suspend them without pay or even terminate employment on the spot. Such rash measures aren't only excessive—they're also unlawful.
Progressive discipline applies for both provincially and federally governed employers. The difference between the two is that if provincially governed employers are not happy with the employee's behaviour, they always have the option to terminate, even if it is without alleging just cause and being done with it. For federally governed employers governed by the Canada Labour Code, they have a very short window to terminate without alleging just cause, if they terminate before the twelve months anniversary of the employment. Federally governed Employees who've served a company for more than one year in order to be terminated must have done either:
- Something so serious that there is a complete lack of trust (such as stealing and the employer can prove it); or
- That the employer can establish that they have applied sufficient progressive discipline such that they can prove that the employee simply won't correct the inappropriate behaviours and the Employer can terminate with just cause. For federal employer, the option of terminating without alleging cause is not open to them if the employee has worked more than twelve months.
- Proper application of progressive discipline
- Information about the Canada Labour Code
- Grounds for employee termination as outlined by the Canada Labour Code
- …and more
So, what can be done for employees who repeatedly fall behind on their duties? Currently, federally regulated employees are expected to abide by the tenets of progressive discipline. Progressive discipline is reasonably straightforward in concept, although complex in execution. This approach is more constructive and compassionate than the standard disciplinary measures people might have learned—or endured—in the past.
Most employees want to do well within the workplace. The main benefit of progressive discipline is that it gives employees the opportunity to correct their mistakes—it allows them room to thrive. The employees who care will pay close attention to your criticisms and warnings, and there will be little need for termination in the future.
Setting Your Employees Up for Success
There are certain criteria that an employer should clearly communicate to their employees at the outset of the job, including workplace policies, expectations in terms of work product, and more. Open communication and easy-to-understand employee guidelines are essential to a productive and positive workplace. When employees know what is expected of them from the outset, there are fewer missteps and errors as they enter the workplace.
We typically advise employers to adopt strong communication policies. Do your employees feel comfortable approaching their superiors with questions and concerns? Does middle management like to keep bosses and upper management employers in the loop? As an employer, are you consistent in your professional temperament? Things like this can go a long way in cultivating a harmonious work environment.
The Steps of Progressive Discipline
When an employee is falling behind or behaving unprofessionally, progressive discipline lays out a series of possible steps an employer can follow to get their employee back on track. The goal of progressive discipline isn't to punish or eventually remove an employee. It's to help them do better so that other actions aren't necessary. What is important when one is applying progressive discipline is that the employee did a culpable act. For example, that he/she is late for work because he/she has slept in which is a culpable act. It is quite different if the employee was late for work as he was at the hospital with his/her child getting treatment. This is not a culpable act. Also, it is preferable that when applying progressive discipline, there are two individuals of management present to avoid a situation of he said she said and no one can corroborate what really happened at the discipline meeting.
Here, we outline the general steps of progressive discipline depending on the inappropriate behaviour. It does not necessarily need to follow the order below. Also, it is imperative that the employment contract or the employment policies permit the imposition of progressive discipline, and it is imperative to follow the requirement of the employment contract or the employment policies as otherwise it will be held against the employer for not following its own policies.
Verbal Warning
The first thing an employer should do when they notice employees coming in late or failing to honor their commitments is to give them a verbal warning. Rather than deploying intimidation tactics, offer constructive criticism however possible. Dedicated employees should respond to this feedback and criticism with the seriousness it deserves. Even though the discipline is verbal, the employer must confirm in writing that it has provided the employee with a verbal warning at the date and time as it relates to being late for work and indicating that it is applying progressive discipline and failure to correct the inappropriate behaviour will lead to further discipline up to and including termination. The letter needs to be signed by the employer and must deliver the same to the employee and ask that he/she signs that he/she has acknowledged receipt and set out the date and time. If the employee refuses to acknowledge receipt, please note it on the discipline letter that the employee was provided confirmation in writing of the verbal warning and refused to acknowledge receipt in writing and note the date and time. You need to provide the employee a copy of the warning letter and retain a signed copy of the warning letter for your file. Failure to document is like not having applied progressive discipline, and will not be able to be used to support a termination at a later date if the behaviour is not corrected. For federal employers this is even more important because after twelve months of employment the only way they can justify a termination is they have just cause to terminate, and they can only establish such if there is a serious incident that can be proven to support a termination or that they have applied progressive discipline such that it establishes that the employee's behaviour is not correctable.
Written Warning
If the same employee doesn't take heed of your verbal warning, the next step will be a written warning. This warning is for their benefit and yours. You will have documented evidence of the employee's failure to meet expectations. Again, you must follow the directive set out about. Confirm in writing that on a certain date and time you provided them a written warning as it relates, for example, leaving work early without permission and that you're applying progressive discipline and failure to correct the inappropriate behaviour will lead to further discipline up to including termination. You should sign two copies of this letter and have the employee acknowledge receipt and set out the date and time it was received. One copy is for the employee and one copy is for the employer to insert into the employee file.
Employee Suspension
When dealing with suspension, we need to consider if the suspension is with or without pay. To be a suspension without pay, it must be permitted in either the employment contract or the employment policies. In a perfect world, the suspension period will help the valued team member realize that their day-to-day approach must change. To cultivate a positive work environment, try to help the employee see this as an opportunity to reflect. You want them to return to work with an eager attitude and a desire to do better. You need to realize that when applying a suspension without pay, this is a serious affair because you are affecting that employee's income. If suspension without pay is permitted and can co up to 5 days, for example, it is recommended that the suspension is done in increments of 1 day at a time to provide the employee time to reflect. Again, it must be confirmed in writing that you are applying progressive discipline in the form. For example, one day suspension without pay and set out the reason and that the employer is applying progressive discipline and failure to correct the inappropriate behaviour will lead to further discipline up to and including termination. The letter should also set out the date and time the employee is expected to report to work. Again, have two copies of the letter of discipline signed by both the employee and have the employee acknowledge receipt of the discipline letter setting out the date and time. One copy is to be given to the employee and one copy for the employer to insert into the employee file.
Termination
The final step is a just-cause termination, which can be established by either one serious incident or that the employer can establish that he/she has provided sufficient progressive discipline and the employee is simply refusing to correct the inappropriate behaviour. This is not a “three strike, and you are out”. The question is: will the adjudicator find that you have applied sufficient discipline to warrant termination? The question is always: when is enough, enough? And that depends on the adjudicator before who you will need to appear before. It is better to err on the side of caution and apply more progressive discipline than not enough. When you reach the point of termination, it should not be a surprise to the employee that he/she is losing his/her job. With the progressive discipline applied, they should know that failure to correct the inappropriate behaviour that their job was at risk. Don't forget with federal employers governed by the Canada Labour Code after twelve months of employment the only way they can proceed to a termination is because they have just cause and that is very hard to prove in law or that they have applied sufficient progressive discipline to support a termination. With employers governed federally, if they cannot prove just cause by either one serious incident or that sufficient progressive discipline has been applied if they are terminated, and they file a complaint under the Canada Labour Code within 90 days of being terminated they ask the tribunal to be reinstated to their position and if that occurs this makes for a toxic work environment.
Learn More About Workplace Disciplinary Policy
The experienced lawyers at Suzanne Desrosiers Professional Corporation are intimately familiar with the disciplinary policies that federally regulated employees should embrace within the workplace. To assist our clients in implementing these practices in their own workplaces, we offer progressive discipline in the workplace training through our virtual training center.
Our workplace training sessions cover a lot of ground. Some of what we explore during the virtual training sessions include:
Self-Paced Webinars
You can explore our informative virtual learning sessions at your leisure. Rewind them whenever you wish, pause them whenever necessary—learn at your own pace and on your own schedule. With 24/7 access to these valuable training sessions, you'll never have to worry about showing up late for class.
We know how demanding your professional life is, and we don't want to add to the stress. If you're in upper management or are a federally regulated employer, these webinars might be exactly what you need to enhance your leadership and help your employees thrive.
Take Advantage of Our Training Program
Are you looking to familiarize yourself further with these concepts and practices? Call our offices now to learn more about our consultation services, virtual webinars, and the many resources available to you. We're here to help you improve your workplace for employees and employers alike.