How to Respectfully Discipline an Employee to Prevent Further Issues

Disciplinary action is an essential component of managing employee performance and behaviour in the workplace. When employees fail to meet job expectations, it is the responsibility of the employer to address the issue promptly and effectively. However, disciplinary action can be a sensitive and complex issue that requires careful consideration and planning.

As a Canadian employer, it is essential to understand the legal framework surrounding disciplinary action and implement best practices to protect your business and employees.

What is Disciplinary Action in the Workplace?

Disciplinary action in the workplace refers to the process by which an employer addresses employee behaviour or performance that is below the expected standard. This can include a range of actions, such as verbal or written warnings, suspension, demotion, or termination of employment.

The purpose of disciplinary action is to correct employee behaviour and ensure that all employees meet the required standards of conduct and performance in the workplace.

What are Some Reasons to Discipline Employees?

There are several reasons why employers may need to discipline employees. Here are some common reasons for disciplinary action in the workplace:

Poor performance

When an employee consistently fails to meet the required standards of job performance, disciplinary action may be necessary to address the issue and improve their work output.

Violation of workplace policies or procedures

Employees may be disciplined if they violate company policies or procedures, such as failing to follow safety protocols, using company resources inappropriately, or engaging in discriminatory behaviour.

Misconduct

Employees who engage in inappropriate or unacceptable behaviour, such as harassment, bullying, theft, or violence, may be subject to disciplinary action.

Attendance issues

Employees who consistently fail to report to work on time, or who take excessive absences, may be disciplined to address the issue and ensure that work is completed on time.

Poor attitude

Employees who exhibit a negative or disruptive attitude towards their coworkers or management may be subject to disciplinary action.

Failure to meet job requirements

Employees who fail to complete assigned tasks or meet job requirements may be disciplined to address the issue and ensure that work is completed on time.

What is the legal framework for disciplinary action in Canada?

The Canadian legal system provides employees with certain protections against unfair discipline, including the right to notice and an opportunity to respond to allegations. Employers must be mindful of the following legal considerations when taking disciplinary action:

Human Rights Legislation

Employers must ensure that disciplinary action does not violate human rights legislation, which protects employees from discrimination based on protected grounds, such as race, gender, age, and disability.

Common Law

Employers may face legal action from employees who feel they were unfairly disciplined. As such, it is essential to follow common law principles of procedural fairness, which include providing notice, an opportunity to respond, and a right to appeal.

Best Practices for Disciplinary Action

When you are aware of an employee not following company policy or committing misconduct, it is important that you act early.

You should investigate the issue and speak with the employee to ensure they have the opportunity to tell their side of the story. After speaking with the employee, you may choose to discipline the employee through your disciplinary procedure.

If you choose not to discipline the employee or ignore the misconduct, this may be seen as condonation. Condoning an employee’s misconduct is problematic for employers because if the issue is not addressed, the employer may not be able to use it at termination as the employee was not aware of the problems.

To minimize the risk of legal liability and protect employee morale, Canadian employers should follow these best practices for disciplinary action:

Develop a Clear Disciplinary Policy

Employers should develop a written disciplinary policy that outlines the procedures and consequences for employee misconduct. The policy should be communicated to all employees and updated regularly to reflect changes in the workplace or legal landscape.

Document Performance and Behavior Issues

Employers should keep detailed records of employee performance and behaviour issues, including dates, times, and specific incidents. This documentation can be used to support disciplinary action and defend against legal claims.

Use Progressive Discipline

Employers should use progressive discipline, which involves a series of escalating consequences for repeated or serious misconduct. The goal is to correct behaviour and avoid termination, but employers should be prepared to terminate employment if necessary.

Provide Notice and an Opportunity to Respond

Employers should provide employees with notice of the allegations against them and an opportunity to respond before taking disciplinary action. Employees should be given the opportunity to provide their perspective and any relevant evidence.

Maintain Confidentiality

Employers should maintain confidentiality throughout the disciplinary process to protect employee privacy and avoid retaliation.

What are the Steps for Disciplinary Action?

In Canada, the specific steps for disciplinary action can vary depending on the province or territory and the nature of the disciplinary process. However, here is a general overview of the steps involved in disciplinary action:

Verbal Warning

Verbal warnings are the most common form of disciplinary action in the workplace and are the first step in a progressive discipline plan, making them the least serious. Supervisors and managers generally issue verbal warnings to fix poor behaviour.

It is important to note that verbal warnings should still be followed up with an email or letter documenting the reason for the warning to ensure there is a paper trail in place.

Written Warning

Written warnings, or sometimes referred to as disciplinary letters, are a formal type of disciplinary action. They are typically issued when the employee continues to violate workplace rules or policies.

Written warnings are the second step in the disciplinary procedure (after verbal warnings) and are used if the employee doesn’t show improvement in their behaviour. They are typically issued after a formal meeting with the employee and their supervisor or manager to discuss their conduct.

Final Written Warning

A final written warning is generally issued when the repeated offence is not corrected or there are serious capability issues that need to be addressed.

It is the precursor to termination if their conduct or work performance does not improve.

Suspension

In some circumstances, it may be appropriate to suspend the employee from work, whether that be paid or unpaid. The right to suspend an employee must be explicitly detailed in the employment contract.

There are two common forms of suspensions – administrative or disciplinary suspensions. Administrative suspensions are commonly used when the employee has been accused of workplace misconduct and the employer must conduct a workplace investigation. These suspensions often are short-term but depend on the circumstances.

On the other hand, disciplinary suspensions are often part of a progressive discipline procedure to address workplace conduct.

Termination

When all other forms of disciplinary action do not result in improvement, you may have to consider termination.

Although termination is a drastic action to take, it may be necessary; especially if you have given the employee countless chances and support but see no signs of improvement.

Moreover, termination may be the only option if the employee’s poor performance or misconduct has severely harmed your company or the workers around them. For example, termination for cause may be warranted if an employee sexually harassed another employee.

Who Should be Involved in Disciplining an Employee?

The person or persons responsible for disciplining an employee is the employer and any direct managers or supervisors. It is your duty to speak to the employee about the issues and how they can be addressed.

Sometimes, other employees may take discipline into their own hands, especially if the misconduct impacts their work. As an employer, you must prevent other employees from disciplining each other as issues may arise such as workplace bullying or harassment.

How do I Know which Disciplinary Action is Appropriate?

If you are unsure of which disciplinary action is appropriate, start by looking at the employee file. The employee file should contain records if the employee has been disciplined before. If it is a first offence, you should consider speaking with them first about the issue. However, if there have been prior offences regarding the same issue, you may want to implement a specific type of disciplinary measure.

The employer should also refer to the employee handbook. Often, the employee handbook will contain a disciplinary procedure that outlines the steps to take if an employee has committed misconduct or behaved contrary to company policy.

What is the difference between disciplinary action and punishing an employee?

Disciplinary action and punishment are often used interchangeably, but they are not the same thing. Disciplinary action is a process by which an employer addresses and corrects employee behaviour or performance that is below the expected standard, with the goal of improving future behaviour and performance. The purpose of disciplinary action is not to punish the employee, but rather to provide a clear message that the behaviour or performance is unacceptable and to help the employee improve.

In contrast, punishment is typically associated with a negative consequence inflicted on the employee for their behaviour, without necessarily providing a clear path for improvement or addressing the underlying cause of the behaviour. Punishment may be seen as retributive or retaliatory, and can often be seen as unfair or disproportionate if it does not align with the severity of the behaviour or the overall circumstances.

How do I Manage Discipline while being aware of Human Rights?

Prior to taking disciplinary action against an employee for misconduct, it’s important to consider whether their behaviour may be related to a disability or perceived disability. For instance, if an employee who has always been punctual is suddenly late for multiple shifts, the employer should investigate further.

Under human rights laws, employers have a “duty to inquire” if they suspect an employee’s behaviour is out of character. While it’s not permissible to ask if an employee has a diagnosed disability, employers should discuss any concerns about behaviour with the employee in a respectful manner.

If the employee’s behaviour is linked to an actual or perceived disability, the employer is obligated to provide reasonable accommodations to the point of undue hardship under human rights legislation. Therefore, before taking disciplinary action, employers should discuss the issue with the employee and explore potential accommodations if necessary.

When Should I Not Discipline My Employee?

There are certain situations where employers must refrain from disciplining employees due to legal or ethical considerations. Here are some examples:

Discrimination or harassment: Employers cannot discipline employees for reasons related to protected characteristics such as race, gender, religion, or sexual orientation. Similarly, employers must not discipline employees for reporting incidents of discrimination or harassment.

Accommodation

Employers cannot discipline employees for requesting accommodation for a disability or religion, as this would be a violation of human rights laws.

Whistleblowing

Employers cannot discipline employees for reporting illegal or unethical behaviour within the organization. This is protected under Ontario Securities Act.

Union activity

Employers cannot discipline employees for engaging in union-related activities such as organizing or participating in forming a union.

Protected leaves

Employers cannot discipline employees for taking protected leaves such as parental leave, sick leave, or bereavement leave.

Retaliation

Employers cannot discipline employees in retaliation for exercising their legal rights or making a complaint against the employer. For example, it is illegal for employers to take action against an employee who refuses unsafe work under occupational health and safety legislation.

It’s important for employers to understand their legal obligations and avoid disciplining employees in these situations, as it could result in legal liability and damage to the organization’s reputation.

How Long Should I Wait to Discipline an Employee?

Once you are notified about an employee committing misconduct or violating company policy, you should take immediate steps to investigate. Waiting too long or not disciplining an employee may lead to condonation.

Can I Suspend my Employee Without Pay?

Many employers contemplate whether they can suspend an employee without pay as a disciplinary action. This all depends on your employment contract and the employee handbook. There should be a clear policy on disciplinary action against an employee for committing misconduct that includes an action of suspension with or without pay.

If there is no employee disciplinary step detailing suspension without pay, or if their contract does not stipulate suspension without pay, the employee may file a claim for constructive dismissal. Suspension without pay is often as a fundamental change to the employee’s terms of employment.

Do you need assistance creating a policy on disciplinary action?

Disciplinary action is a necessary aspect of managing employee performance and behaviour in the workplace. However, Canadian employers must follow legal requirements and best practices to avoid legal liability and protect employee morale.

An essential component of effectively addressing employee misconduct while protecting their business and employees is by developing a clear disciplinary policy. Peninsula’s experts can help you draft a disciplinary action policy and implement best practices to prevent constructive dismissal claims.

We can also assist with any HR, health & safety, or employee management advice that you may need. To learn more about how our services can benefit your business, call an expert today at 1 (833) 247-3652