Progressive discipline

Considering past incidents when imposing discipline on an employee

Brian Johnston
Question: What are the restrictions and guidelines for using past disciplinary actions against an employee in determining current discipline? Can an employer use the number of past incidents against an employee rather than their severity?

Answer: When disciplining employees, past discipline is a proper consideration, but the review of past discipline must be grounded on more than just the number of incidents. Subject to any contractual term, employers must consider the type of conduct giving rise to the past discipline, the punishment meted out and the time period over which the events took place.

Since the landmark Supreme Court of Canada case of McKinley v. B.C. Tel, the focus of workplace discipline is on the proportionality of the response to the employee’s misconduct. Whether the employee’s misconduct warrants dismissal for just cause or some form of discipline short of dismissal rests on an examination of the nature and circumstances of the misconduct and the proportionality of the response.

Most employers use “progressive discipline” in managing employees. Progressive discipline expects employers to warn employees of their misdeeds, providing them with a reasonable opportunity to improve performance. The system involves the employer applying discipline for misconduct on a progressive basis or series of steps. Each step carries a more serious penalty until the last step, dismissal, is reached.

Progressive discipline is only used after the employer has determined the nature of the misconduct, and the nature and history of the employment relationship, warrants continuing the employment relationship. The only exception to the application of such an approach would typically be in cases of “gross misconduct”, such as a situation where an employee committed theft, misappropriation or serious fraud. Such would likely warrant immediate termination.

A typical progression would start with a verbal warning for the first offence and a written warning for the second. A suspension might result from a third offence and a further offence would warrant termination.

Care has to be exercised with respect to suspending a non-unionized employee. Carscallen v. FRI Corporation suggests suspending a non-unionized employee could be construed as constructive dismissal. In fact, the Ontario Superior Court of Justice said in Carscallen that the right to suspend with or without pay has to be founded on the written contract or an expressly agreed upon company policy. Courts have generally found disciplinary suspensions amount to constructive dismissal.

When disciplining employees and progressing through the steps of discipline, it is not enough for employers to simply tell an employee that her conduct fails to meet the established standard and then hand out punishment. Take, for example, an employee who is chronically late for work. When disciplining the employee for her tardiness, the employer must first show it is reasonable for the employer to expect the employee to arrive on time — perhaps because the employee must replace another worker. The employer must then prove the employee has failed to meet the standard of arriving on time each day. It must warn the employee that failure to meet the standard of arriving on time each day will jeopardize her position and, finally, the employee must be provided with a reasonable time period to correct her behaviour.

Employers are cautioned not to place too much emphasis on the fact that past discipline exists, but rather consider whether past discipline shows a pattern of misconduct.

For more information see:

McKinley v. B.C. Tel, 2001 CarswellBC 1335 (S.C.C.).
Carscallen v. FRI Corp., 2005 CarswellOnt 2394 (Ont. S.C.J.).

Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].

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