Is disciplining an employee worth the effort?
By John Hyde
Many employers dread being seen as the “bad guy” and the result is to allow employee misconduct to continue without any discipline.
While this may seem like the easiest option in the moment, it is exactly the type of mistake that comes back to haunt employers when they finally make the decision to terminate.
Managers might think they are doing the right thing by looking past small problems and sparing employees’ feelings. This approach, however, leaves the underlying problems unaddressed and can be the first step towards an untenable employment relationship.
When things fall apart and it becomes clear the employment relationship must end, a history of the “soft touch” management style can make employees that much more confused, hurt, and vindictive when they are terminated.
Worse still, failing to manage employee expectations regarding conduct and performance leads to financial liability upon termination, as employers may be required to pay severance to employees who, under other circumstances, would receive nothing.
Why employers cannot let the small stuff slide
In almost all cases, a disciplinary termination (for example: a termination “for cause”) needs to be preceded by a pattern of what is legally known as “progressive discipline.”
A termination for cause is the most severe form of discipline and, it must be supported by a robust disciplinary history. In other words, when it comes to discipline, employers must walk before they can run.
Can discipline be verbal?
Yes and no. Verbal discipline still counts, as long as it is documented; however, it is much harder to prove what exactly was communicated and, what the employee understood from that discussion.
A principle of progressive discipline is that employees do wrong because they do not understand what is expected of them.
Putting discipline in writing gives employees the benefit of the doubt – the employer assumes the employee did not understand the standard and, by spelling it out in writing, ensures there is no misunderstanding moving forward.
Written discipline is not harsh, it is conscientious.
Do companies need a written disciplinary policy?
Strictly speaking, no, but it does help significantly. There is a reason that nearly all unionized workplaces maintain a written disciplinary policy – it works.
Progressive discipline is all about being able to show, through documentation, that the employee engaged in a pattern of misconduct, knew their conduct was unacceptable, had an opportunity to correct it, and failed to do so.
A disciplinary policy sets the framework for progressive discipline and makes the expectations much clearer – not only for the employee, but for a judge or arbitrator who may later review a termination for cause.
Is it possible to terminate for cause without progressive discipline?
It is possible, but very difficult.
Termination for cause has been referred to by courts and tribunals as the “capital punishment of employment law.”
Termination for cause without prior discipline, therefore, is reserved for the most egregious cases of dishonesty, violence or severely improper conduct like sexual harassment.
Even “lesser” forms of dishonesty may not meet this threshold. Terminating for cause without a solid disciplinary record is almost always a gamble and, it is advisable that employers refrain from doing so without first consulting expert legal advice.
How can employers do better?
Employers can go beyond supervising and directing employees; management should strive to provide coaching, mentoring and guidance on performance improvement.
Inevitably, employees make mistakes. When employers turn a blind eye to misconduct, they are doing both their employees and the company a serious disservice.
John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.
Nicholas Goldhawk, an associate Hyde HR Law, co-wrote this commentary.
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