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.