Having a progressive discipline policy is very beneficial for employers. It can help correct performance issues leading to better work, and may even provide cover in the event of employee claims. 

This article looks at the benefits of performance management and progressive discipline policies. We also look at a performance improvement plan’s impact on an employee’s discrimination and harassment claim against her former employer before the Human Rights Tribunal of Ontario (HRTO).

What is a progressive discipline policy?

A progressive discipline policy sets out the stages that the employer will follow in dealing with employee performance problems. It should set out the various measures that will be applied (such as training, warnings, performance improvement plans, suspension and termination), along with other matters, including the timelines, expectations and consequences of failure to improve.

Such a policy provides transparency and consistency when dealing with performance issues. It should be brought to the attention of new employees and, along with the employment contract, be used to set employee expectations. 

What are the benefits of having a progressive discipline policy?

A progressive discipline policy can deliver various benefits for both employers and employees.

Performance may improve, preventing the costs associated with hiring staff

Firstly, giving employees the opportunity and means to be able to improve helps both parties move past performance issues. Following a performance improvement plan or course of training may lead to improved performance and productivity. It may also obviate the need to replace underperforming employees, which can be both a time-consuming and expensive process.

Reducing the risk of successful claims by employees

Following a performance management or progressive discipline policy might also protect an employer from liability. As we have mentioned, whether the employer has followed a progressive discipline policy is important in determining whether a termination for cause was justified. This is because an employee can only be terminated for cause in certain circumstances, and a single instance of poor performance with no opportunity for correction is unlikely to meet the threshold.

In addition, demonstrating that a progressive discipline policy was followed before adverse treatment, such as termination, may reduce the likelihood of an employee succeeding in a human rights claim. This is because it may support a claim by the employer that the adverse treatment was due to poor performance rather than the presence of a protected characteristic.

Employee brought discrimination claim following termination

In Yan v 30 Forensic Engineering Inc., an employee brought a discrimination and harassment claim before the HRTO. She alleged adverse treatment on the basis of race, place of origin, sex, marital status, age, disability and reprisal.

The employee, a woman born in China in her late 40’s, started working for the employer in April 2018. She was a senior associate forensic engineer, and according to her employment contract, she was responsible for supervising and coaching associates in her team.

The employee was terminated without cause in January 2019 following several incidents.

Employer argued the termination was for failure to fulfill job requirements

The employee made a number of allegations, but the main one was that she was discriminated against on the basis of race, age, gender and country of origin. The key event supporting this claim was the employer’s production of custom T-shirts featuring the company chairman’s face on a photo of Chairman Mao’s head, along with emails amongst the management team saying that the T-shirts would look bad in the event they decided to terminate the employee over performance issues relating to communication differences that may be “cultural” in nature.

The employer refuted the allegations, arguing that it terminated the employee following failure to improve performance. Some of the employee’s team members had complained about her inability to mentor them, and she had also failed to complete a proposal for a potential client in time to meet the deadline. 

As a result, she had been placed on a performance improvement plan. This set out the issues and required a follow-up meeting to assess progress, noting that failure to improve may result in disciplinary action. The employee was let go after further incidents. 

Employer was insensitive toward Chinese people

The HRTO adjudicator found that the emails displayed insensitivity and disrespect toward Chinese people and noted:

“Race-based discrimination will usually be the result of subtle unconscious beliefs, biases, and prejudices, which one does not expect to be displayed openly.”

The employee claimed that management incorrectly concluded she had poor interpersonal skills based on Chinese stereotypes and concocted her performance issues to build a case for termination. 

Employer presented a credible non-discriminatory explanation for its conduct

However, the adjudicator decided that the evidence showed that the employer had concerns about performance before the T-shirt incident. 

The issue was whether race was a factor in the termination, and the adjudicator determined that it was not, deciding that the evidence confirmed the employer had a credible non-discriminatory explanation for the termination. The explanation was that the employee needed to fulfill her role as a senior associate, specifically leading the team and mentoring other associates. The adjudicator pointed to the contractual term, performance improvement plan, and other evidence of ongoing performance issues. 

As a result, the HRTO dismissed the employee’s discrimination and harassment claim. 

Contact Toronto Employment Law Firm Haynes Law Firm for Guidance on Performance Management and Human Rights Claims

Paulette Haynes and her team at Haynes Law Firm assist employers with their employment law needs, both contentious and non-contentious. The firm helps prepare progressive discipline policies to minimize risk and represents employers in disputes arising from termination and discrimination allegations. Haynes Law Firm also works with employees, ensuring they receive the advice they need if they have been accused of poor performance by their employer or subjected to discrimination or harassment in the workplace. Please contact us online or by phone at 416.593.2731.

The Dos & Don’ts of Progressive Discipline

This article is intended to help human resources staff and management develop an efficient and effective approach to disciplining employees in the workplace.

What is Progressive Discipline?

Progressive discipline refers to a system whereby an employer applies discipline for less serious infractions on a progressive basis or series of steps. Each step carries a progressively more serious penalty until the last step, dismissal, is reached. Although progressive discipline systems are most common in unionized work environments, there is merit to having such a system in non-union work settings.

Workplace Discipline Misconceptions Debunked

Progressive Discipline is not a Punishment Process

Perhaps one of the most prevalent errors about progressive discipline is that it is a punishment process whereby managers apply negative sanctions expecting that those sanctions will result in some positive effect on the worker’s conduct.

Unfortunately, the use of negative sanctions on their own, bring about unpredictable results. In rare cases, they may work through the fear factor. In other cases, they have an effect opposite to the one intended and can contribute to increasing tensions in the retailer-employee relationship.

Progressive discipline should assist employees in understanding that there is some unsuitable conduct and provide them with the means to address the concern. Using this approach, discipline focuses on what the employee must learn in order to bring his/her behaviour in line with the needs and expectations of the organization.

Discipline doesn’t have to be Confrontational

Another misunderstanding about discipline is that it is inherently confrontational. Some managers may see discipline as something to be done to the employee, rather than something done with an employee.

An alternative perspective is to consider discipline as involving cooperation between management and the employee to solve a problem. This approach creates a situation that encourages the employee to work with management to identify the causes of problematic behaviour and to take action to correct those problems.

The Dangers of Condoning Misconduct by Failing to Discipline 

Sometimes employers are too slow to respond to an emerging disciplinary issue. From a legal perspective, the employer who delays discipline may be said to “condone’ the problem. Condonation occurs when an employer is aware of misconduct and takes no disciplinary action within a reasonable time. An employer that condones misconduct cannot later use that same misconduct as a basis for discipline or termination.

So, an employer that consistently applies the practice of progressive discipline is much less likely to be seen as having condoned a worker’s behaviour if some form of discipline is applied to the worker. Employers can also more effectively establish grounds for dismissal if the misconduct continues.

Steps of Progressive Discipline

Applying discipline in a series of steps allows an employer to respond to an employee’s inappropriate conduct in a measured way and allows an employee the opportunity to improve. Moreover, where rules are clear and consistently applied, employees are less likely to resent discipline or see it as unfair.

Discipline Policy

Progressive discipline is typically put in place within an organization by way of some formal policy and may include:

1. both oral and written warnings;
2. return to probationary status (if performance is the problem);
3. suspensions with or without pay; and
4. dismissal.

Employers should be cautious when applying suspensions without pay or probationary periods as disciplinary measures since they run the risk of being seen as having constructively dismissed the employee in question. Therefore, employers should consult with legal counsel in circumstances where progressive discipline is necessary.

By developing a discipline policy, employers must consider the level of performance required of all employees in order to determine some standard against which to measure performance. Employers should also give careful attention to the types of conduct which they wish to be the subject of progressive discipline. If an employer fails to set out the types of misconduct which will be subject to the policy, it may find it will be forced to undertake progressive discipline for an employee whose misconduct might otherwise entitle the employer to terminate an employee without notice. To minimize legal difficulties when employing disciplinary action, employers should consider the following recommendations:

1. .Draw to the employee’s attention any inconsistencies or disregard for the terms of his/her
   employment.
2. Fully document and clearly communicate to the employee any disciplinary action taken toward
   the employee. The documentation should be placed in the employee’s file and the employee is to
   be advised in writing that a notation of the disciplinary action is being placed on his/her record.
3. Explain to the employee the problem, the acceptable standard, and the action necessary to meet
   the standard at every step.
4. Ask the employee whether he/she has any comments to add to the disciplinary form.
   Employees should initial the form to prove that they have received a copy of it.
5. Set a date for a follow-up meeting but state that management will respond immediately if
   further problems arise before the meeting.
6. If problems persist after taking other disciplinary action, clearly communicate to the employee,
   in writing, that further occurrences in the behaviour will lead to further discipline and, possibly,
   termination without further notice.
7. Ensure that the discipline process is private and confidential; and
8. Maintain confidentiality over all retailer records in the organization’s human resources
   department.

Contact Haynes Law Firm in Ontario for Advice on Implementing Progressive Discipline Practices

The choices that employers make when applying discipline practices can determine whether a positive or negative outcome will be the result. By pursuing progressive discipline strategies, employers can achieve the ultimate goal of managing employee performance problems or misconduct before they escalate and potentially disrupt the working relationship.

*This article is intended as general information only and does not constitute legal advice of any kind. This material may not be duplicated or distributed, without the written permission of Haynes Law Firm.