When is the 'last straw'?

As legal counsel, we often hear the unfortunate tale of the straw that broke the camel’s back. By this, we mean the story of the organization that has struggled with the behaviour of a problem employee for months, or even years, but the latest incident is the last straw — the status quo can no longer stand. Unfortunately, it is often the case that the employee has never been disciplined or confronted regarding their conduct or behaviour at work.

In many cases, employers may have felt the need to balance the perceived risk of prematurely souring an employment relationship by imposing discipline and the risk of leaving an issue unaddressed. However, where there is no record of progressive discipline, in most cases an employer will not be in a position to terminate for cause based on that “final straw” incident. The employer is then in the difficult position of either terminating without cause and providing the problem employee notice of pay in lieu of notice, or starting the long road of progressive discipline from scratch.

Neither option may be particularly palatable to an organization once they have reached that point.

What is progressive discipline?

The progressive discipline process involves a series of escalating steps of discipline. These steps are designed to ensure employees understand the misconduct that has occurred and how to correct the misconduct going forward.

Progressive discipline need not always be a linear process (verbal warning, written warning, final written warning, suspension, termination) and will depend on various factors including the severity of the latest misconduct and how much time has passed since the last instance of misconduct. In cases of minor misconduct, several warnings may be appropriate before moving to a final warning or suspension.

Progressive discipline allows employers to effectively document steps taken to improve employee conduct. Properly documenting discipline can create the foundation to support dismissing an employee for just cause.

Without progressive discipline, employers can leave themselves open to financial liability, particularly with respect to just cause terminations.

The do’s and don’ts of progressive discipline

DO have and follow a progressive discipline policy: A progressive discipline policy is a key tool for employers to manage employee performance, address workplace issues fairly, and reduce legal risks. A progressive discipline policy creates a framework for employers to notify employees of unacceptable conduct and help them improve their behaviour.

When there is a policy and procedure in place, it makes it easier for an organization to incorporate this into its day-to-day management of the workplace as a positive and necessary part of the workplace culture. Where misconduct and poor performance are addressed on an ad hoc basis, it makes it easier to view discipline as a purely punitive measure (as opposed to something constructive), or merely an uncomfortable conversation that can be put off until the next time something arises. Addressing poor performance and misconduct consistently and systematically when it arises can benefit the organization and everyone involved in the long run and need not be viewed as a purely punitive mechanism.

DON’T condone misconduct: Condoning bad behaviour can lead to significantly greater problems in the long run, as an employer will be unable to rely on bad behaviour that was not documented or addressed in a timely manner if it ultimately decides to terminate based on future bad behaviour. Progressive discipline does not mean that an employer will necessarily terminate the employee in the future, but it creates a record demonstrating that the employer has raised and addressed the issue, which can be relied upon in a court of law should just cause ultimately be established.

The road from progressive discipline to termination for cause can be long and, depending on the nature of the misconduct, it may take a significant record of warnings and delinquencies to reach the point of just cause. If an employer is waiting for misconduct it views as severe enough to warrant punishment, it may find itself too late to build a sufficient record to support termination by the time the straw breaks the camel’s back.

DO treat progressive discipline as a co-operative process, where possible and appropriate: While imposing discipline may be uncomfortable, it can also present a useful opportunity to work with the employee to explain standards or requirements, identify deficiencies, and to co-operate with the employee to find ways to best address those deficiencies at an early stage before the employment relationship has become dysfunctional. Discipline does not need to be an adversarial or combative process, and instead can be used as a means of communicating the standard to be met, the deficiency identified, and how the employer and employee can work together to get the employee to the requisite standard.

DON’T wait until termination is on the table to commence progressive discipline: As noted above, progressive discipline should not be viewed as a practice to implement only once termination is on the table as a potential future option. It should be a regular, standard process to address misconduct and performance deficiencies.

In many cases an employer will only come to the realization that it should have been following progressive discipline well after the first instances of misconduct arose and potentially at a time when termination is no longer a reasonable option. An employer may, for example, come to the realization once the employee is on a lengthy medical leave that the workplace is much more healthy and functional in the absence of that misconduct and/or deficient performance, the same being unrelated to the reasons for the medical leave, and that the employer likely would have had cause to terminate if it was following a progressive discipline policy. However, at that point of this realization, the employee is on a protected leave of absence and termination could expose the employer to potentially significant liability and, in some cases, the risk of that employee being reinstated.

Being proactive about misconduct

The key takeaway of this piece is the importance of being proactive about employee misconduct and poor performance. When it comes to issues that are of lower magnitude or severity, it can be tempting to view formal discipline as more disruptive than addressing the issue informally and moving forward. However, in the long run, this approach can expose the organization to unnecessary liability and ultimately detract from the functionality and culture of the workplace. Consistent performance management, when done well, can have significant benefits for an organization.

Do not wait until that “last straw” moment to address months or years of misconduct, as it will likely be too late, leaving an employer in a difficult predicament of starting progressive discipline afresh or terminating without cause and paying a difficult employee significant amounts of pay in lieu of notice.

Amy Gibson is partner at MLT Aikins in Saskatoon, practicing labour and employment law. Zoe Johansen-Hill is an associate lawyer in the advocacy department at MLT Aikins in Saskatoon.