To punish or improve?

When determining the right level of discipline for employee misconduct, it’s important to remember the purpose of the discipline

By Jeffrey R. Smith

It’s good to have rules. Especially when you’re running a workplace with many different people with different jobs and different personalities. Rules help keep employees in line, keep the business running smoothly, and deter employees from misconduct.

However, as all employers know, having policies and procedures in place doesn’t eliminate misconduct completely. There can be hiccups along the way, and how employers deal with these can be as important as the rules themselves.

It’s generally accepted in employment law circles that employee misconduct must be pretty serious to warrant dismissal, without other factors. Repeated misconduct can be just cause for dismissal, but only extremely serious misconduct can be considered a reason to fire an employee.

Employer policies can outline specific types of misconduct that may warrant discipline up to and including dismissal, but in the end the true test of whether there’s just cause for dismissal is whether the employment relationship is irreparable. The same can be said for deciding what level of discipline is warranted and sticking to a progressive discipline method.

Ultimately, the purpose of discipline must be examined — is it to punish or improve the employee? Most of the time, employers must go the latter route before resorting to the former.

An Ontario employer with an employee in a high-security environment who required a lot of trust in his position found out that the employee had taken a sick day when he wasn’t really sick. After the employee had called in sick, the employer followed up and it turned out the employee didn’t have any water at home, so he took the day off. The employee immediately regretted it and came clean, though he still had vacation days to use.

The employer felt lying was serious misconduct for a high-security employee and it should warrant dismissal, but since the employee had a long term of service without prior discipline, it decided to suspend the employee for 10 days without pay instead of firing him.

An arbitrator found the suspension was too harsh, as the employee recognized what he did was wrong and had many years of good service without discipline. While the misconduct was serious, the arbitrator found it was important to encourage employees to come clean about misconduct and the purpose of discipline was to drive the point home about the misconduct being wrong.

The arbitrator felt that because the employee acknowledged what he did and was normally a reliable employee, a lesser suspension would be effective. A five-day suspension was substituted instead. See BA International Inc. and Unifor, Local 87-M (Hall), Re, 2015 CarswellOnt 12622 (Ont. Arb.)

When an employee is guilty of serious misconduct, it may be the employer’s first instinct to come down hard, as deterrence is important. But there are several factors to consider in determining how hard to come down on the employee. Overkill may do more harm than good, particularly if the employee is generally a good worker. Discipline for misconduct is important, but it must be just as well as firm to be truly effective.

A respectful workforce is more productive than an fearful and unhappy workforce, and fair discipline is less likely to lead to constructive or wrongful dismissal claims. Employers want employees to play by the rules, but it’s a good idea for them to play by the rules established in employment law as well.

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