Implementing progressive discipline action

When preparing to discuss disciplinary measures with an employee, consider the appropriate time, place and people, the employee’s privacy, the language and structure of the conversation itself, and the documentation methods used.

Timing, place, and people

A disciplinary conversation should be held as soon as fact-finding and information gathering have been completed and a decision to discipline has been made. Unnecessary delays in the process can lead to employee distress and/or be interpreted as condoning the behaviour.

If the discipline process results in termination, any unnecessary delays might make it difficult to rely upon the behaviour as the cause of employment termination. Ultimately, a lawyer should be consulted before terminating an employee.

You should meet with the employee in private at each stage of the discipline process. If your organization allows the employee or employer to have a witness at the process, the witness(es) should be informed of the confidential nature of the process.

You can create guidelines for how a witness can attend the meeting and what their role is. This only relates to non-union employees. If your organization has a collective agreement, follow the process outlined within it.

Documentation

For each step of a progressive discipline process, it’s important to fully document the situation and retain all documentation in the employee’s confidential file. The employee should receive the original signed disciplinary letter, and a copy should be placed on their employee file.

For each incident, create a factual document that contains information such as:

• The employee’s name and job title.
• Others who were involved in, or witnessed, the situation.
• Where and when the incident took place, including date, day and time.
• Documentation of the problem, including a factual account of what happened and why it was a problem.
• What policies or rules were broken.
• The consequence of the behaviour to other employees or the organization.
• Changes that are required to correct the problem.
• The date by which the change/improvement must be made.
• The consequences of not making the necessary change.
• Date the documentation was written up.
• The signature of the manager/supervisor who wrote up the documentation.

Place the incident documentation in the employee’s HR file, remembering that all employees have the right to read their own HR file. The documentation of an incident that is kept on file should only be factual and not contain information not addressed with the employee.

If discipline results in a termination of employment, your organization may be faced with a lawsuit. Others will then read all documentation. For this reason, it’s imperative to verify details, document facts, and avoid emotional or editorial comments in any documentation.

Implementing progressive discipline action

Verbal warning

A verbal warning is given to the employee verbally in a meeting.

When issuing a verbal warning:

• Identify and clearly explain the problem or issue with the employee’s behaviour or performance. Providing an example is helpful.
• Allow the employee to respond and/or explain contributing factors such as provocation or a mistake.
• Provide the employee with detailed instruction on how to improve and outline any support you can give the employee to make the required changes.
• Ensure the employee understands the standard that is expected.
• Explain the consequences of not correcting the behaviour. Depending on your policy and the nature of the misconduct, this may be another warning at the same stage or progression to the next stage of the process.
• Provide a specific time frame during which the change is to take place.

Documentation

A letter is provided to the employee confirming that they received a verbal warning, and a copy of the letter is placed on their personnel file. Typically, verbal warning letters begin with, “as discussed with you on X date.” This documentation is needed in case the situation must proceed in the progressive discipline process.

Written warning

Prepare a written reprimand if the problem, or another problem with the same employee, happens again within the timeframe outlined in your organization’s progressive discipline policy. Deliver the written warning in a private meeting, discuss the contents of the warning with the employee, allow the employee to respond and determine any contributing factors.

The written warning should include:

• A description of the problem or issues.
• Reference to the verbal reprimand that preceded the written reprimand, the date which it occurred, and the expected changes in behaviour.
• Clear instructions on what and how the employee is expected to change.
• The consequences of any further incidents.

Documentation

• Ask the employee to sign a copy of the written warning to confirm that they have received, read, discussed, and understood the warning. If the employee refuses to sign, make a note that they refused to sign.
• Give the employee a copy of the written warning
• Place a copy of the written warning and the employee’s confirmation of receipt in the employee’s HR file. If the employee refused to sign, note that a copy of the warning was given to the employee.

Warnings are still valid even when an employee refuses to sign the document. If an employee refuses to sign, note it on the document and provide a copy to the employee.

Suspension

Suspensions should only be considered when a more serious infraction is suspected or has been confirmed through investigation or when less severe violations continue to occur despite the employee receiving verbal and/or written warnings.

There are two types of suspension, with pay and without pay. Suspension with pay is typically in relation to an investigation. Suspension without pay typically results from an investigation and determination of the appropriate action.

Important: A lawyer should be always consulted before suspending an employee to ensure that your organization follows all applicable provincial employment legislation and/or employment law, including whether you have the right to withhold pay during the suspension period. These conditions may need to be agreed to in an employment contract or included in an organization’s policy that the employee has access to.

Duration of suspensions

There is no set standard for the length of suspensions; however, you must be consistent from one situation to the next and ideally document their approach to suspensions in policy. For example, some organizations start with a one-day suspension and issue incremental increases. The approach will depend on the nature of the behaviour. Common practice is to give 1–10 day suspensions in increments of one, three, five and 10 days.

Suspension letter

Prepare a letter of suspension that includes:

• The length of the suspension.
• The date on which the employee may return to work.
• Restate the contents of the written warning.
• Indicate the behaviour that has led to the suspension and the necessary changes that are required.
• State the consequences of not making the necessary changes upon return to the job.
• Provide the employee with information about appealing the discipline and the timeframe in which to do so.

Documentation

Ask the employee to sign a copy of the suspension letter confirming that they have received, read, discussed and understood the reason for the suspension. If the employee refuses to sign, make a note that the employee refused to sign.

Give the employee a copy of the letter of suspension and place a copy of the letter of suspension and the employee’s confirmation of receipt in the employee’s HR file. If the employee refused to sign, make a note that a copy of the letter was given to the employee.

Termination

If the employee doesn’t improve the behaviour and/or performance after several, longer suspensions, the next step would be termination. You should consult a lawyer to ensure your organization is following the right steps leading up to termination.

Terminating an employee’s employment is serious, and you should consult an employment lawyer before taking this step. You must ensure you have taken all necessary steps and are following all relevant legislation, including provincial employment standards legislation, human rights legislation, and (as applicable) the collective agreement to protect your organization from future legal action.