Introducing a ban and discipline for activities employees used to be allowed to do
Question: If an employer decides to crack down on a certain type of behaviour that it turned a blind eye to before — such as lateness or absenteeism — and adds specific disciplinary consequences to its policy, how much leeway should it give employees who continue with this behaviour? Can it follow this disciplinary policy immediately once it is made clear to employees?
Answer: This is a fairly common dilemma that employers find themselves facing. Having a strong policy is important, but it is equally important to communicate and enforce it as a matter of practice. Otherwise, to borrow an old expression, the policy is not worth the paper it is written on. There is no shortage of cases where an employee has been disciplined or dismissed for allegedly breaching a workplace policy, but the evidence has shown that the policy has never been routinely enforced.
When I work with clients, we often address this situation as part of an overall effort to establish a new workplace regime. Where an existing policy is to be “reaffirmed,” it is important to effectively reset the situation and communicate clearly to the employees, and to management, that regardless of what has gone on in the past, the policy will now be enforced consistently. It is then up to the employer to do so. If they fall back into their old habit of turning a blind eye to breaches, then it will be difficult for them to enforce the policy in any particular situation. However, if they clearly advise the employees that future breaches will be subject to discipline, in accordance with applicable disciplinary policies, and then proceed to do so, they will have a stronger argument.
Of course, this is not to say any breach of a policy will or should lead to summary dismissal. In any situation in which an employee is found to have engaged in misconduct, the next question for an employer to answer is what the appropriate form of discipline will be. This can include dismissal, but only in appropriate situations. Otherwise, lesser forms of discipline will be appropriate, and it will be open to an employer to impose them.
There is nothing wrong with immediately enforcing the policy once the employees have been clearly warned of the new approach, and I would say it is in fact advisable to do so.Stuart Rudner is a partner in Miller Thomson LLP’s Labour and Employment Group in Toronto. He can be reached at (905) 415-6767 or [email protected]