When taking action to address problem employees, it’s important to understand at the outset the type of problems presented. The first part of this article (available in the July 14th issue) looked at strategies for dealing with unsatisfactory performance, where there are no extenuating circumstances.
This second part looks at ways to deal with situations where performance is affected by personal, off-the-job problems (Type 2), where there has been a deliberate violation of the law (Type 3) or where there has been repeated minor violations of company rules and regulations (Type 4).
Dealing with type 2 — personal problems
The attitudes of management to personal problems and their effect on performance and employee well-being have changed dramatically over the past 20 years. Where once organizations saw personal problems as an employee's responsibility, now they are prepared to provide support and assistance in their correction. In many cases, these changes have come about through the co-operative efforts of labour and management. Most personal problems arise for one of two reasons:
1. Health and stress problems: Research has shown a correlation between an individual's health and fitness and his work performance. In addition, the levels of stress associated with working in the modern organization can severely affect a person's health and performance, and lead to personal problems such as alcoholism or absenteeism.
2. Family and personal problems: A major outside source of unsatisfactory performance is family and personal problems. Few people can avoid having family or personal troubles affect their work at some time during their career. Employees have parents, children, brothers and sisters who face various crises, such as sickness or death, which can cause varying degrees of problems for individual employees and affect their performance. Similarly, there are personal problems related to finances, lifestyles and relationships that will be significant enough to have an impact on an employee's commitment and motivation.
In a number of cases, the employee's problem can only be corrected or alleviated through professional help. Many companies have programs for assisting employees through referral to community organizations. These plans are known as employee assistance programs (EAP) and operate on a confidential basis using professional social workers, counsellors or trained co-ordinators.
They have been created specifically to deal with problems of a personal nature. It has been estimated that at any point in time at least six per cent of a company's workforce is suffering from substance abuse problems alone. EAPs have been shown to be cost-effective in the treatment of these problems and other personal issues that can potentially influence an employee's performance.
The key elements in creating and sustaining a successful EAP are having a program that employees know about, understand and trust, and supervisors and union stewards who are able to “confront” employees about their performance in a supportive and responsible manner.
As will be covered in our discussion of Type 4 problems, employees will not always respond to organizational intervention and offers of assistance. The potential for denial, self-protection and defensive behaviour is particularly great in cases of addiction. Where there is a union, shop stewards and union leadership can play a vital role in helping both the employee and management in these circumstances. Sometimes disciplinary action is necessary to make an employee accept her responsibility to seek help.
Dealing with type 3 — Taking disciplinary action
The true value of the typology is that it leads to the elimination of many of the traditional reasons (i.e. Type 1 and 2 problems) that have led management to take formal disciplinary action. The use of the typology provides the potential for: •the development of problem-oriented strategies for dealing with performance and personal issues; and
•collaboration between employee representatives and management.
Notwithstanding this statement, however, there are type 3 situations where management is required to take disciplinary action. Most of the reasons for taking disciplinary action are similar to those that would lead to criminal or civil action in society. Some of the most prominent causes are:
•theft of property belonging to the company, fellow employees, suppliers or customers;
•falsification of documents essential to the company's operation;
•sexual or other forms of harassment;
•wilful violation of company rules and regulations related to safety, operating methods or procedures, etc.; and
•wilful and malicious destruction of property belonging to the company, fellow employees, suppliers or customers.
In each of these type 3 situations, discipline is justified if:
1. the employee deliberately carried out the act of: theft, harassment, falsification, etc.;
2. the employee knew or should have known that what she was doing was wrong;
3. the rule or regulation was reasonable; and
4. the degree of discipline taken was appropriate to the seriousness of the offence.
The first of these four tests is whether the employee deliberately carried out the act. Under common law and collective agreements, it is the responsibility of management to prove that the act took place. The collection of evidence through witnesses, record examination and data collection is a crucial element in establishing whether the employee committed the offence.
Ultimately, the investigation needs to provide a valid and factual body of information that can be agreed to. The development of “an agreed statement of facts” is the desired outcome of any investigation for management, the union and the employee. The use of the following techniques of information collection improves the probability of the investigation being fair and just:
1. the use of an independent or outside investigator who is recognized for having special skills and experience in the area under investigation;
2. the inclusion of the union representative in any interviews that are conducted in order to collect information; and
3. the joint undertaking of information collection and analysis by union and management.
The second test is whether the employee was aware of the rules and policies. Again, the responsibility rests with management to inform employees of rules and regulations. It is through initial orientation and training and communication that management is able to fulfil this responsibility.
A number of companies have successfully used the annual distribution of a code of conduct to inform employees of their responsibilities. In these cases, employees are asked to read the code and sign a form stating that they have done so.
The development of a code, along with formal training programs and policies, can serve as a means of resolving the third test of whether the rules, regulations and expectations are reasonable.
Again, consultation between employee representatives and management, before the fact, can help avoid misunderstanding and conflict, if and when management needs to take disciplinary action.
Finally, there is the determination of the degree of discipline. Historically companies have used a “progressive” approach whereby they take the disciplinary measures they believe to be appropriate to punish the employee and to prevent re-occurrence.
Typically, a progressive disciplinary policy has a verbal warning as its first step. It is progressive because if there is a reoccurrence of the offence within a prescribed period, then the employee is given a written warning. If further violations occur, then the discipline progresses to a suspension and eventually termination.
In cases where the offence is more serious, then the less severe measures of verbal and written warnings are skipped and the more punitive disciplinary measures of suspension or discharge are taken.
The concept of progressive discipline has existed for a long time. It is normal practice for arbitrators and courts to require management to demonstrate that it has used a progressive approach before they will uphold suspensions and disciplinary terminations. It is the progressive aspect of this process that is seen as its benefit. The logic is that employees, knowing more severe penalties are in store, will learn from the punishment and not re-commit the offence.
It is our belief that the prevalent use of progressive discipline (and the requirement by arbitrators and judges that it be used) has helped create the adversarial union-management situation that exists today. The rationale that employees will learn to change their behaviour through the "progressive" application of punishment and negative reinforcement is difficult, if not impossible, to substantiate through a review of current research, particularly in situations where the problem relates to performance.
Behavioural science research has demonstrated the adverse impact punishment and negative reinforcement can have on employee behaviour and organizational conduct.
Consequently having a so-called "corrective" process, built on punishment and negative reinforcement, is highly questionable. Put another way, progressive discipline is not progressive.
This is not to say that punishment is not part of discipline — it is. Employees have to know that there are negative consequences if they commit certain offences. Managers have a responsibility to inform employees of those consequences. In a similar sense, a union has a responsibility to inform its members. It is the recognition of these responsibilities that provides an opportunity for management, unions and employees to co-operate in the following ways:
•Management has the responsibility of developing a formal disciplinary policy that outlines the potential consequences for violations and offences. This policy should be reviewed with employees for input. The policy may contain the traditional disciplinary measures of verbal warning, letter, suspension and discharge or such innovations as organizational "community" service, demotion or even disciplinary leave. Whatever the eventual policy outcome, it is important that there be a common understanding of its purpose — to prevent type 3 offences, violations and infractions in the workplace;
•Management and employee representatives can collaborate on informing employees about the policy and, most importantly, the reason for its existence;
•Management and employee representatives can collaborate on ensuring the employee is provided “due process” in the event he decides to appeal the disciplinary measure. This collaboration can extend to finding less expensive ways to provide third-party arbitration of cases that cannot be resolved through a grievance or appeal process; and
•Management and employee representatives can agree that “the minimum required measure to prevent re-occurrence” is taken with the employee, in the event discipline is proven to be justified.
Dealing with type 4 — Taking disciplinary action
Of the four types of problems outlined in this article, the most difficult to analyze and deal with are type 4 problems. Type 4 problems are in reality type 1, 2 and 3 problems, rolled into one. Type 4 problems are:
•Type 1 problems that have not responded to corrective action or where the employee is not been prepared to recognize his responsibility in solving the problem. Consequently, the quantity or quality of the work is still unsatisfactory.
•Type 2 problems where the employee has been provided with appropriate assistance and support to deal with personal problem but the problems still result in performance shortcomings.
•Type 3 problems where continued minor violations and infractions have led to a “culminating incident” and, as a consequence, management is required to discipline the employee.
Discipline, in the case of type 4 problems, is a “wake up call” where an employee is “put on notice” that he has to take responsibility for his actions and behaviour. One important aspect of type 4 problems is that the manager has worked at trying to solve the problem using non-disciplinary measures.
When these measures have not produced the desired results because the employee has been unprepared to change, the discipline is a signal to the employee that change is needed.
Because type 4 problems derive from the other three types, they are varied and often complex.
They can extend from attendance issues (type 1) through substance abuse (type 2) to interpersonal conflict, horseplay and harassment between employees (type 3).
The critical element in all of them is that in each case, non-punitive corrective measures are tried before the use of discipline, thus increasing the potential for avoiding acrimony, resentment and a sense of injustice on the part of the employee and his representatives.
The development of a comprehensive approach to diagnosing and dealing with performance problems and discipline requires a change in mindset on the part of managers and union leaders.
In order to be successful in making this change, managers and union leaders have to be prepared to give up established beliefs and entrenched ideas. In situations where there is a union, there is often a legacy of bitterness and anger running deep through the relationship that will act as a barrier to making a successful transition.
Management and unions have shown themselves as willing and able to change and work together in improving safety, training, business survival and viability.
Being able to work together to effectively manage employee performance and disciplinary problems represents a further way in which they can find responsible solutions for their mutual benefit.
Mark Alexander is a principal with the Vancouver-based HR consultancy MacB Group. He can be reacehed at (778) 772-9300 or email@example.com.