Labour & Employment Newsletter

Ending Employment for Just Cause – When does an Employer have to use progressive discipline?

Employers sometimes have an employee whose behaviour is a problem but who does not commit an act that, by itself, is serious enough to warrant termination for just cause.  While a single incident might not be enough to provide just cause an employer can – and should – begin to move the employee through progressive discipline.  The progressive discipline process provides guidance to allow employees to improve their behavior; it also documents the issues to support discipline or even termination for any further, similar incidents.

This newsletter addresses the purpose of progressive discipline, identifies some considerations and debunks a common myth surrounding this process.

General approaches to termination for just cause

To terminate an employee for just cause, an employer needs to have one of three scenarios:

  1. It must have evidence that the employee has committed “gross misconduct”; or
  2. It must be able to show that it moved the employee through progressive discipline; or
  3. It must be able to show that the employee is simply unable to do the job due to innocent absenteeism or just a lack of skills.

“Gross misconduct” refers to the types of behaviour where one incident is enough to justify termination.  Clear theft of money or physical assault of a supervisor will usually be enough to justify a termination for just cause.

However, most employees do not engage in such dramatic behaviour.  Most employee wrongdoing tends to be smaller in scale. In those situations, courts and other adjudicators require that an employer be able to show that it moved the employee through “progressive discipline” in which the employee gets discipline that is progressively more serious and leads to a clear warning that employment could be in danger. Specifically, courts or other adjudicators require that an employer be able to show that it:

  1. advised the employee of the standard he is to meet (and, of course, this standard has to be reasonable);
  2. specified how he is falling short of that standard;
  3. has given him a reasonable time to improve; and
  4. warned him that if he did not improve, his employment could be terminated for just cause.

In general, employees must be made aware of the concerns with their performance and be given the opportunity to correct the situation and improve their performance to a satisfactory level.

Depending on the circumstances, an employer can skip one or more of the steps in a progressive discipline plan.  Serious offences may result in immediate suspension or termination. Having a progressive discipline policy does not usually limit the employer to only the next steps in the process.  You should review the specific language in effect in your workplace.

The purpose of progressive discipline

The purpose of progressive discipline is to give the employee the opportunity to correct his behaviour and meet the standards of the job.  By taking the steps outlined above, the employer will be ensuring that the employee knows the standards he is to meet and how he is falling short of them.   The employer should also give the employee a reasonable time to improve and specify that if the employee does not improve, his employment can be terminated for just cause.

Considerations in using progressive discipline

We set out some considerations to help with using a progressive discipline policy.

  1. While not usually a necessary step of the progressive discipline process, sometimes it is appropriate for an employee to first receive coaching and counseling from a supervisor. This step gives the employee the chance to promptly correct the issue.
  2. The first formal step of the progressive discipline process is often a documented verbal warning. This warning should be issued by a supervisor. It is appropriate when a performance issue, behaviour or policy violation warrants an immediate formal disciplinary action, or when prior coaching on the behaviour has not corrected the issue.
  3. The next formal step is often a written warning. A written warning may be issued after one or more verbal warnings, but a prior verbal warning is not required to issue a written warning. A supervisor may issue a written warning when the employee’s actions are serious and warrant an immediate response regardless of whether there has been prior discipline. There may be more than one written warning issued, depending on the seriousness of the conduct and established policies. A written warning should clearly state that any future incidents can lead to further discipline, up to and including termination for just cause.
  4. If serious or repeated violations or misconduct occur, a disciplinary suspension or termination of employment may be warranted. We typically recommend that a disciplinary suspension be without pay. A written suspension notice should clearly state that any future incidents can lead to further discipline, up to and including termination for just cause.
  5. Ultimately, an employee’s employment could be terminated for just cause after being moved through progressive discipline.
  6. Every step of the progressive discipline process should be documented on the employee’s personnel file. If you operate in a unionized workplace, please check the language of the collective agreement to verify whether the Union must get a copy of any disciplinary letter or notice.
  7. Another important consideration is ensuring that progressive discipline is consistently implemented in the workplace.

A common myth about Progressive Discipline

Some employers have tried to “compact” the steps of a progressive disciplinary process.  For instance, there have been situations where an employer has issued multiple, increasingly serious disciplinary notices together, such as a verbal warning and a written warning, for two incidents that came to light at the same time.   This strategy is usually not defensible.

A key aspect of progressive discipline is providing reasonable time between steps so that the employee has the chance to improve their conduct and bring themselves in line with the expected standard. Progressive discipline is not simply checking off the boxes to ultimately justify a termination of employment.    If two incidents of misconduct come to light at the same time that would normally warrant a verbal warning for one and a written warning for the other, the appropriate response would probably be to react to the circumstances in a single disciplinary notice.  It is not possible to “compact” progressive discipline by taking the steps otherwise used in progressive discipline (verbal warning, written warning, suspension) at the same time.

Conclusion

Progressive discipline, used properly, is a necessary approach for improving employee conduct and bringing behaviours in line with expected standards and policies.   Be sure to keep the general principles of a progressive discipline policy in mind and check the language of your own progressive discipline policy and collective agreement.

This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are encouraged to consult their professional advisers before taking any action on the basis of information contained in this newsletter. If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.