February 19, 2003by Israel Foulon LLP
Whether out of fear of legal repercussions or ignorance, many employers are paralyzed when it comes to poor performance or attitudinal problems of employees. A suggested approach to this problem is to take corrective action that, when communicated by way of written policies and verbal discussions and consistently applied, can become a win-win situation for employer and employee alike.
The following are the main elements of a sound progressive discipline policy program:
- Senior management, with input from front line management, should analyze each job and create a job description.
- Job descriptions should be discussed with each employee on an individual basis. The employee must be advised of the expected duties and the level of expectation required.
- The employer should clearly communicate acceptable standards of conduct as well as consequences of misconduct.
- The policy must include a description of the various steps which may be taken as part of the corrective action policy. Many employers use the following:
- Step 1: Verbal warning
- Step 2: Written warning
- Step 3: Suspension, with or without pay. The employer must have a clear and communicated suspension with or without pay policy or else it could amount to a constructive dismissal.
- Step 4: Termination
- Management should retain the right, in its sole and absolute discretion, to deviate from the above steps where management considers such deviation necessary. There is conduct which would justify immediate termination for just cause without following the above steps.
- Having clearly defined expectations as well as the corrective steps, managers must monitor employee performance.
- Good performance ought to be recognized and poor performance dealt with in a timely and constructive fashion. Remember, the goal is to correct the problem, not to punish the employee.
- After such initial discussion, the manager should continue to monitor the employee’s performance. If similar problems arise, they should be properly documented.
- In the next meeting the examples of specific deficiencies will be discussed and management, together with the employee, will be able to devise a corrective action plan for the employee. Such a corrective action plan will address the performance or attitudinal issues, and will specifically advise the employee of realistic expectations within a particular time frame. The employee should be given an opportunity to add any further comments to the form and should sign this document. Management should set up a specific date for a followup meeting.
- The form described above serves many purposes. It is a written record of the events, provides a precedent for similar circumstances in the future and will permit a consistent approach to similar problems with this and other employees.
- Managers must receive active education and training in monitoring such plans. Too often managers shy away from difficult situations and ignore an employee while he flounders.
- If the employee successfully completes the corrective action plan, such success should be confirmed in writing. In the confirmation note the employee should be advised the company expects him to continue at the same level of performance.
- If the difficulties continue, the employee should be provided with a final written warning. This warning may be issued during the corrective action-plan time frame in reaction to a specific event or at the end of the corrective action plan in the final review if the employee has not been successful. In very clear language the employee should be advised of exactly what he must achieve or what he must not do within a very short time period. The employee should be told failure to achieve these goals will result in immediate dismissal for cause. Managers must include this type of language in the document for it to be seen by a court as a final warning that employment is in jeopardy.
- If the employee does not meet management’s expectation during the final time line, despite the final warning, management would be in the position and should terminate the employee for just cause.
The above policy creates a win-win situation for the employer. By following the described system, there will be one of two outcomes. The employer will either have a well-trained, productive and motivated employee or the employer will be in a position to terminate (potentially for just cause) the employment relationship of an employee who was not willing or able to perform while substantially reducing the risk of being successfully attacked by an employee whether by way of common law action or other administrative complaint.
Peter Israel and Chris Foulon are partners in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. They can be reached at 416-640-1550 or firstname.lastname@example.org or email@example.com. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today.