Problem employees: discipline or termination?

“Before you fire someone, you have to do due diligence. You have to figure out, what is the underlying cause of this employee's erratic behaviour, especially if most of the time they're performing their job as well as anyone else.”

So says Anil Verma, professor emeritus of industrial relations and HR management at the Rotman School of Management in Toronto, in discussing the implications of a recent case out of B.C.

A B.C. arbitrator decided that an employer did not have just cause to terminate an employee who shoulder-checked his supervisor, instead reinstating him with a six-month suspension.

The employee, a knife-cutter at the time of his termination, had worked for Crown Packaging in Richmond B.C. for 31 years and was 50 years old when he was terminated for cause. After two suspensions for misconduct – involving inappropriate exchanges with coworkers and “impulsive outbursts” – over the preceding two years, the final incident saw him accidentally shoulder-check a supervisor.

Because he had already complained about that supervisor to his direct supervisor, as well as friends in a group chat, and also considering his recent suspensions, the employer decided that the shoulder-checking incident had been intentional and terminated him.

Cunningham’s union, Unifor Local 433, grieved the dismissal, saying that Crown Packaging had no cause, as the alleged shoulder check had been an “innocent accident, warranting no discipline,” the arbitrator wrote.

Pattern of misconduct and suspensions

In March and November of 2021, the employee received two separate suspensions: a one-day suspension and a three-day suspension that had been reduced to two days. The arbitrator also pointed out that when the shoulder check happened, the employee had been leaving work to drive his 16-year-old daughter to a train to shorten her trip to work: “She had suffered a serious health issue, and he was quite protective of her.”

The grievor overtook the supervisor and another employee on a walkway and hit the supervisor’s shoulder as he passed. He kept walking and did not turn around to apologize.

“The employer would argue the common thread is that he is volatile, and he is given to fits of anger during which he would do unpredictable, things. Maybe it fits into that pattern,” says Verma.

Progressive discipline for ‘problem employees’

Even if an employee is exhibiting a pattern of misconduct, Verma explains, with progressive discipline there are points at which an employer can offer an employee opportunities to disclose if they are suffering any adverse conditions that may be affecting their behaviour, such as stress or mental health issues.

“You give them a chance to explain what happened and why it happened, and it is during this process of due diligence of investigation that you uncover issues like, I'm alcoholic, or I am financially stressed, or my marriage is breaking up,” says Verma.

"You continue this line of treatment and investigation and consultation, and only when all else fails, then you can fire the employee, but not before you've tried more than once, and progressively making it more severe – verbal warning, one-day suspension, one-week suspension, three-month suspension, and so on and so forth.”

Dishonesty during investigation was cause for suspension

However, in this case, neither the employee or the union offered any such explanation for his pattern of misconduct, and in fact the employee lied during the investigation, and it was this dishonesty – saying he had not discussed the supervisor prior to the hit, which in fact he had – was a serious consideration for the arbitrator, and ultimately resulted in the six-month suspension.

“Part of the consideration in coming to that conclusion, because that's a very lengthy suspension, was the fact that he was suspended twice previously, and obviously the arbitrator thought that this latest incident of dishonesty was worthy of an escalated suspension,” says Adrian Jakibchuk, partner at Littler in Toronto.

“I think the system, the way it operates in unionized environments, is built in a way that's supposed to address in part this concern about employees feeling that they have been mistreated and that they got too severe a penalty for what they had done. I think for unionized employers, ensuring that you consider the principles of progressive discipline as you approach a troublesome employee, I think will be important, and it'll be a good way of hopefully avoiding grievances.”

In the arbitrator’s decision, it was explained that the employee was “technically a good employee” who was often asked for direction due to his long experience. He also “speaks loudly and tends easily to swearing” and described himself in a group chat as a “pain” to the employer, being a strong union supporter.

The arbitrator found that on a balance of probability, the employee had likely not deliberately meant to shoulder check the supervisor – the employee is described as a “large man” at over six feet tall and almost 300 lbs, and told his employer during the subsequent investigation that he’d thought the hit was a “brush” – however the supervisor he’d hit said it was a hard, intentional hit, and had refused to accept the employee’s apology.

Reinstatement can cause further problems

While the outcome for this employee is positive, as he was reinstated to his job that he had had for three decades, Verma explains that prevention is always the better option when disciplining an employee.

In the example of this case, he says, this employee will still have to work with the supervisor he had the incident with; “Maybe that that supervisor will not be so kind to him.”

“The vast majority of people who are reinstated, they'd prefer to take a compensation package and leave, rather than to go back to the job, because the work context for them has been kind of poisoned and kind of changed. You can never erase that incident,” Verma says.

“So reinstatement by itself is also not the greatest solution. And hence, it's best if you never have to go down this path. So the best solution is prevention.”