The concept of progressive discipline is principally recognized and applied in a unionized work environment. While it may apply in some non-union settings, its application will be determined by existing employment contracts and the law of constructive dismissal. This general legal information (not legal advice) is subject to change, and there may be exceptions based on your specific circumstances. You should obtain independent legal advice before taking any action which may impact your legal rights. If you are an employee or an employer, and need legal advice regarding progressive discipline, an OA lawyer will be pleased to assist you with your situation. 

Most employees want to be good at their job, be a part of a healthy work environment and contribute to the success of the organization. On occasion, an employee may display a pattern of disruptive behaviors affecting work performance and morale. What action should an employer take to address these instances to protect the organization before it is negatively impacted? What options are available to employers before they consider terminating their employee? Progressive discipline provides a step-by-step process that can assist an employer in remedying a situation where there is poor work performance or misconduct in the workplace.

What is Progressive Discipline?

Progressive discipline is the process of enforcing workplace standards to correct unsatisfactory work performance or behavior through a series of steps that increase in severity. The purpose of progressive discipline is to inform employees of their unacceptable work performance or workplace behavior, and allow them the opportunity to improve. Many workplaces have Progressive Discipline Policies which often incorporate some of the following elements:

Typical Steps in Progressive Discipline

Verbal warning

The process starts with an initial meeting with the employee to explain why the employee’s work performance or behavior is unacceptable. In this meeting, the employer should communicate the workplace expectation, and establish a time period for the employee to correct unsatisfactory work performance or behavior.

Written Warning

A written warning should be issued if the employee has not improved the employee’s workplace performance or behavior within the initial time period set out by the employer. The written warning should restate the issue (e.g. the employee’s performance), the expectations in the workplace, and the consequences for continued inadequate performance. It can be helpful to place a struggling employee on a performance improvement plan (“PIP”) to allow the employee the necessary resources and coaching to improve.

Demotion or Suspension

Subject to the terms set out in the applicable Collective Agreement, employers may have the option to suspend or even demote an employee if the employee fails to respond appropriately following an express written warning. In some Progressive Discipline Policies, two or more suspensions of increasing length may be contemplated.

Dismissal

As a last resort, if an employee is unwilling or unable to meet an employer’s reasonable expectations for performance or workplace conduct, dismissal may be considered in appropriate cases. Legal advice should be sought in any case where dismissal is being considered.

Two Cases for Progressive Discipline

1. Progressive Discipline for Incompetence or Poor Performance

This describes a broad spectrum of scenarios where performance does not meet expectations.

The employer should:

• Bring the unacceptable work to the employee’s attention
• Explain why the employee’s work performance is unacceptable and clarify expectations of the workplace, with reference, if possible, to measurable, pre-defined standards
• Follow the steps in the Progressive Discipline Policy and Collective Agreement, if applicable.

2. Progressive Discipline for Misconduct

This describes circumstances where an employee violates express workplace policies or generally accepted standards of conduct.

The employer should:

• Investigate the alleged misconduct, by collecting relevant documents and speaking with potential witnesses
• Allow the employee an opportunity to explain their side of the story
• Follow the steps in the Progressive Discipline Policy and Collective Agreement, if applicable.

Note: When conducting discipline for misconduct, an employer should consider any mitigating or aggravating factors including:

• Was the misconduct intentional?
• Has the employee accepted responsibility for his/her actions?
• Has the employee shown remorse during the investigation process?
• Did the conduct put the safety of other employees at risk?
• Does the employee have a history of misconduct?
• Was the offence committed during working hours?
• Was there any threat of violence?

Depending on the severity of the misconduct, the employer may have to decide whether the offence qualifies for summary dismissal, however, this is only in very extreme cases. If the misconduct is minor, the employer should continue the process of progressive discipline.

Additional Considerations for Employers during the Progressive Discipline Process

Termination

Dismissal should only be considered as a last resort where employees have failed to respond to progressive discipline measures. Employers should only move to terminate their employees if there has not been an adequate improvement in performance or conduct after following the steps for progressive discipline.

It is extremely important that, after every warning or meeting, an employer should set out a timeframe to allow an employee the opportunity to improve their workplace performance or behavior, and provide adequate resources to assist the employee if necessary.

Documentation

The purpose of documentation is to demonstrate to a decision-maker, such as a court or labour arbitrator, that the employer has gone through the necessary steps to allow the employee the opportunity to improve their workplace performance or conduct, and that the employee has failed to respond appropriately. As a result, the documentation will support an employer’s case when defending a claim for unjust or wrongful dismissal.

Note: For an employer, everything done through the progressive discipline process should be documented in the employee’s personnel file. This includes:

• Dates and times of meetings or warnings
• Meeting notes
• The issue being addressed with the employee
• The timeline for improvement of performance
• Employee performance reviews
• Disciplinary history of the employee.

Quick and timely action

Once an employer notices a pattern of unacceptable employee behaviors or performance, the employer should act immediately. This is important because, if too much time has elapsed or multiple incidents have not been addressed, a decision-maker may find that the employer has condoned the behavior of the employee or allowed the employee to believe that his conduct or performance is acceptable. As a result, dismissing an employee for just cause will be extremely difficult. Legal advice should be sought before considering suspension, demotion, or termination to understand what options employers have available to them under the terms of a Collective Agreement or employment contract.

O’Neill Associates is proud to support students from the Bora Laskin Faculty of Law (Lakehead University, Thunder Bay) through the school’s unique Integrated Practice Curriculum (IPC) Program. The IPC, a Bora Laskin variation of the “articling” program students complete at most other law schools, matches students with law firms to work side-by-side with experienced lawyers for one full semester during the third and final year. This article was written by Declan Gunovski who will be completing his Placement with OA in the upcoming academic year.