Employers and employees alike often wonder what consequences employers can impose on their employees due to performance issues or misconduct. Here, we provide an overview of discipline in the workplace.
While discipline of employees will vary on a case by case basis, Canadian courts have consistently upheld the doctrine of “progressive discipline”.
This refers to the gradual escalation of disciplinary action by an employer, as opposed to an employer handing down a harsh penalty at a first offence. If an employee violates a workplace safety policy, for example, it would be premature and unreasonable for the employer to dismiss the employee on that basis; a warning would be a more appropriate response to a first violation, with more serious consequences for future violations of the same policy.
The intent of progressive discipline is to allow an employee who displays improper or undesired behaviour a chance to improve or correct his behaviour.
In instances where an employee’s performance or conduct is at issue, the employer should clearly provide the employee with the following:
- a clear explanation of the problem;
- a list of steps that should be taken by the employee to address and correct the problem;
- assistance to the employee to help him address and correct the problem; and
- a reasonable timeframe in which the problem is expected to be corrected.
Progressive discipline encourages the early detection by employers of problems involving their employees and the opportunity to address them before they escalate. Further, it allows employees to understand any problems with respect to their conduct or performance and provides them with a chance to take the steps required to remedy the situation and maintain their employment. Progressive discipline also decreases the chances of successful wrongful dismissal claims and Human Rights applications against employers.
Workplace discipline should be corrective, not punitive. In most instances, discipline that is punitive, such as withholding pay or suspending an employee without pay, is contrary to employment law. Employees facing improper disciplinary procedures may seek remedies, such as damages for constructive dismissal or aggravated and/or punitive damages against their employers.
The most severe measure an employer can implement against an employee is termination of employment. However, termination should be the last resort when progressive discipline has failed. In exceptional circumstances, immediate termination for an act of misconduct may be appropriate when the misconduct is significant and continued employment is unfeasible, but in almost all cases, employers should be guided by the principle of progressive and corrective discipline.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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