Q: I am the sole human resource professional of a small non-union manufacturing company and I have an employee who is giving me a headache. The employee started off by coming into work late without advance warning or a telephone call, he is refusing to take orders from his Supervisor and his carelessness caused a small mishap on the production line resulting in two hours of downtime during a peak production period and a small health and safety issue. Unfortunately, my Supervisor has not warned the employee to improve or the consequences of failing to improve, either verbally or in writing. My Supervisor is at her wits end and she now wants to terminate this employee for just cause. What concerns do you see if I terminate this employee for just cause and are there any ways to avoid this situation in the future?

This case is a textbook example of the importance of an employer implementing and adhering to a progressive discipline policy at the workplace (be it a unionized or non-unionized workplace). In the absence of a progressive discipline policy you could dismiss the employee for alleged just cause based on the "cumulative effect" of his poor performance and misconduct. However, this dismissal is likely not going to withstand the scrutiny of a court in a wrongful dismissal action.

My primary concern is that it does not appear that you have the requisite disciplinary record or documentary evidence required to substantiate your just cause termination. That is because your Supervisor failed to provide the employee with verbal or written reprimands and/or warnings of unacceptable performance, counseling and/or training on how to improve his performance and the consequences for failing to improve (i.e., that he could be disciplined up to and including dismissal). The lack of progressive discipline could make the employee's prior cumulative record of culpable misconduct meaningless in that the employer may be precluded from relying on the employee's past conduct if the employee was never properly discipline and advised to correct his/her behavior for it in the first place. Moreover, if your just cause dismissal fails it turns into a wrongful dismissal, which could attract a sizeable damage award.

The best way to avoid this type of fact situation in the future and to ensure that you have the documentary evidence required to justify a termination is to implement a corrective discipline policy. Progressive discipline is a proven and judicially recognized way for employers to formally address discipline in the workplace in a uniform manner. Progressive discipline polices should be a clearly written policy that employees can easily understand and that supervisors, managers and human resources professionals can easily apply.

Progressive discipline policies are almost universally premised on the following series of four steps, which become increasingly more formal along the continuum if the inappropriate employee behavior continues. The key to success is that the employee must be counseled on how to correct his/her behavior at each step of the process. The first step is a verbal warning where a Supervisor counsels the employee with respect to the nature of the infraction and the action required to correct it. If the poor behavior continues, the second step is a written warning that lists the nature of the infraction and the action necessary to correct it in the future. The third step is a suspension whereby the employee is suspended from employment without pay for a period of time depending on severity of the conduct. The final step is a termination for cause if the employee fails to change his/her conduct despite the employers previous corrective efforts. Management usually retains the right to decide where on the continuum to start progressive discipline given the severity of the workplace misconduct. Further, past misconduct and its failure to be corrected justifies increasingly more severe penalties.

In order to provide a progressive discipline policy with greater clarity, some policies specifically provide "guidelines" on what type of employee conduct will attract what type of employer disciplinary sanctions (with management reserving the right to deviate from the guidelines on a case-by-case basis if the facts justify such deviation). For example, it is very common for a progressive discipline policy to enumerate three types of offences and the disciplinary response associated with each. For example, Level One infractions, which are the least serious and include unauthorized leaves and poor work performance may start with a verbal warning and work their way up to a dismissal if the behavior is not corrected. In contrast, a Level Two infraction, which could include dishonesty or insubordination, may start at a written warning (instead of a verbal warning) and end with dismissal as the ultimate sanction if the behavior is not corrected. Finally, Level Three violations, which are the most serious, such as theft, falsifying work records or violent behavior would attract a suspension or termination as an appropriate first response depending on their severity.

At all times an effective progressive discipline policy is dependent upon consistent employer application and the time lines contained within the policy should be strictly adhered too. All alleged breaches, meetings, counseling sessions and corrective action must be documented and placed in the employee's file. Documenting all incidents give the employer the disciplinary record and documentation necessary if the employer ever has to defend its action in the future.

In the example above, if the employer had a progressive discipline policy in place it could have warned the employee about coming into work late. If the behavior continued despite counseling efforts the employer could have issued him a written warning about not taking direction from Supervisor. If the poor behavior continued the employer could issue a suspension for the carelessness on the production line and consider a just cause termination for the health and safety issue. The employer would have had all of the documentary evidence required to justify its decision.

"Reproduced with permission from Workplace TodayR Inc. (www.workplace.ca) C2009 All rights reserved".

Simon R. Heath
Human Resources Workplace
Law/Labour Relations Group
Tel: 905.276.0402
E-mail: sheath@kmblaw.com

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