Progressive discipline

Question: Our progressive discipline policy requires a final written warning before termination. If an employee has received a written warning for performance issues and is now being disciplined for threatening a co-worker, can we rely on the prior warning to dismiss the employee, or does the previous misconduct have to be related? Is one written warning enough before dismissal for subsequent misconduct?

Answer: Threatening a co-worker is often a serious form of misconduct, depending on the nature of the threat, the surrounding circumstances and whether or not violence was threatened. In some jurisdictions, a threat of violence is considered equivalent to violence.

If the employee is unionized, you should begin by reviewing the collective agreement to see if it contains any relevant procedural or substantive requirements. If it does, they must be followed. Your next stop should be your discipline policy which, under the principles established in Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., must be consistent with the collective agreement, reasonable, clear, consistently enforced and communicated to employees. Read the policy carefully and make sure you comply with it.

A bargaining unit employee who has completed probation can normally only be disciplined or dismissed for just and reasonable cause. In most cases, arbitrators will expect an employer to follow a progressive disciplinary approach for misconduct that is not serious enough in itself to warrant discharge. Progressive discipline usually involves an escalating series of penalties for misconduct, beginning with one or more reprimands, and progressing through one or more suspensions up to the point of dismissal. Other disciplinary approaches may also be permissible, depending on the circumstances, such as the practice in the workplace and any applicable policy or collective agreement provisions.

When a unionized employee engages in misconduct, the employer should consider all the relevant circumstances before deciding on the appropriate disciplinary response. If the employee has an admissible disciplinary record, it should be reviewed carefully to determine whether the employer can properly characterize the latest misconduct to be a “culminating incident” that justifies dismissal. Previous acts of misconduct which resulted in discipline will usually be relevant to this analysis, even of they were of a different nature.

In British Columbia, an arbitrator hearing a discharge case will ask the three questions posed in William Scott & Co. v. C.F.A.W., Local P-162:

•Has the grievor engaged in conduct that merits some form of discipline?

•If so, was the employer’s decision to dismiss an excessive response in the circumstances?

•If dismissal was excessive, what disciplinary measure should be substituted as just and equitable?

Factors which affect this analysis may include the employee’s length of service, the employee’s work record and previous discipline, the severity of the infraction, whether the conduct was premeditated or repetitive, whether the employee apologized and was truly remorseful, the likelihood of recurrence, the importance of deterrence and any other relevant factors.

If your employee is non-union, you likely have the right to terminate her employment summarily for just cause. You may also be able to dismiss without cause, but if you do that you’ll need to provide appropriate notice or severance compensation.

At common law, just cause for dismissal will exist if an employee has been guilty of serious misconduct that is fundamentally inconsistent with the continuation of the employment relationship. In McKinley v. BC Tel, the Supreme Court of Canada ruled that a court must apply a contextual approach in a just cause case, to determine whether dismissal was justified in all the circumstances. Again, the nature and extent of an employee’s past disciplinary record may be relevant to this determination.