Topic 5- Discipline & Discharge in the Unionized

Workplace: Progressive Discipline

 
WORKPLACE DISCIPLINE MAXIMS
 Managers manage, employees obey
o Ensures managerial authority in workplace: workers must obey reasonable order
 Obey now, grieve later
o Avoids workplace debates; grievance procedures is still available; not obeying a
supervisory order is insubordination (exception for safety concerns)
RIGHTS TO REFUSE UNSAFE WORK
 Health & safety legislation gives employees right to refuse unsafe work
 However, non-union employees may be much less willing to exercise this right
 e.g., ontario study found that over 90% of work refusals occurred in unionized workplaces
 
UTILIZING DISCIPLINE
 From a workplace culture & efficiency perspective, if an employer does not discipline employees
when required:
o Morale may deteriorate
o Control over the workplace may erode
o Increasingly difficult to deal with employees who are consistently poor performers, or
who display unacceptable conduct
 
GENERAL APPROACHES FOR EFFECTIVE WORKPLACE DISCIPLINE
1. Be fair & firm- the discipline should match the problem
2. Be consistent & predictable- all employees who deserve discipline should receive it
POSSIBLE DISCIPLINE
Possible discipline
1. Verbal warning
2. Written warning
3. Suspension (time off without pay)
4. Last chance agreement
5. Demotion (if CA allows this)
6. Dismissal (discharge)
Restrictions on discipline
1. Can not impose fines (unless CA allows)
2. Can not reduce seniority
3. Can not impose discipline twice for same misconduct
 
PROGRESSIVE DISCIPLINE
 System in which penalties for unacceptable conduct increase according to frequency and
severity of behaviour
 Common in unionized workplaces because of "just cause" requirement for disciplining
employees (found in labour relations code)
 Found in some non-union workplaces as fair, systematic means of handling discipline
 Use of progressive discipline satisfies "just cause" requirement by:
o Providing an opportunity to change the unacceptable behaviour or performance
o Showing that the employer has given fair warning, and
o Outlining the consequences of a failure to improve
PROGRESSIVE DISCIPLINE: GOALS
1. To correct unacceptable behaviour, not merely punish it
2. To build a case for potential arbitration by showing the discipline was for just cause
3. To deter other employees from engaging in similar behaviour
PROGRESSIVE DISCIPLINE: TYPICAL STEPS
1. Verbal warning(s)
2. Written warning(s)
3. Suspension(s) (without pay)
4. Last chance agreement (if appropriate given the situation)
5. Discharge (dismissal)
VERBAL WARNING
1. Formal verbal warning
a. Formal conversation between a supervisor & an employee about an attendance,
misconduct, or performance problem
 Verbal warnings should be entered into supervisor's logbook (can be used as evidence in
potential arbitration hearings)
WRITTEN WARNING
2. Written letter regarding an attendance, misconduct, or performance problem (send to
employee, and also placed in employee's personnel file)
 Warnings should include
o What the specific attendance, misconduct or performance problem is
o What changes are necessary and
 o Further problems will lead to more serious penalties
SUSPENSION
3. Offending employee is suspended from work without pay (noted in personnel file)
 Written letter to employee accompanies the suspension & includes the same information a
written warning would contain
 Length of suspension may vary from one day to several months
LAST CHANCE AGREEMENT (LCA)
4. Last chance agreement
a. Used instead of discharge when employer decides it is appropriate to give employee
one last chance (short of discharge) to improve behaviour
b. Employee discharged if agreement is breached
c. Includes all the elements of a written warning or suspension plus:
i. Clear confirmation that LCA is the last opportunity for reform
ii. Mention that any repetition of the behavioural problem will result in discharge
(without going to arbitration)
1. May include "suspension without pay" in LCA if allowed per CA
d. LCA must be signed by employer, union, and employee to confirm their understanding
and for LCA to have effect
 Advantages
o Employee avoids dismissal
o Employee motivated to rehabilitate
o Possibly valuable employee is retained
o Arbitration may be avoided
DISCHARGE
5. Discharge- final step in progressive discipline
 Often occurs only after several progressive steps have been taken to communicate to employee
that their attendance, performance, or misconduct is unacceptable
 However, some infractions are so very serious (grave) that discharge is appropriate for the first
offence: no previous warnings needed
 
COMMUNICATING DISCIPLINE TO AN EMPLOYEE
 Depending on the wording of the collective agreement:
o Discipline/discharge may have to be communicated in the presence of union shop
steward or another employee; refer to CA
o If this is not possible, wait until steward is available; or (if appropriate) send employee
home with pay (and no discipline yet) until it is possible to have steward present for the
meeting in which discipline will be communicated
 
SEVERITY OF OFFENCES: MINOR OFFENCES
 Minor offences
o Lateness
o Overstaying breaks or lunch periods
o Poor housekeeping of work area
o Minor inefficiencies
 Appropriate penalty (perhaps after a friendly reminder) would be a verbal warning
 Workplace context matters: lateness in one workplace may be trivial but important in another;
different penalties are appropriate in different workplaces
SEVERITY OF OFFENCES: SERIOUS OFFENCES
 Serious offences
o Careless workmanship
o Sleeping on the job
o Lack of cooperation
o Resistance to authority
o Failure to follow proper procedures
o Violation of important safety rules
o Smoking in restricted areas
 Appropriate penalty: either a written warning or a suspension (for the 1st serious offence)
depending on severity of offence in that particular workplace & presence of mitigating factors
SEVERITY OF OFFENCES: GRAVE OFFENCES
 Grave offences
o Gross insubordination
o Gross disregard for safety
o Striking or threatening others
o Fighting
o Sabotage or destruction of employer property
o Theft
o Absent without leave
 Appropriate penalty is often discharge for the first grave offence (unless there are mitigating
factors)
 
GOING TO ARBITRATION
 Every collective agreement must provide that all discipline & dismissals be for "just &
reasonable cause"
 If union grieves discipline/dismissal, the case may go to arbitration
 Arbitrator can substitute a lesser penalty, if the penalty applied was not appropriate given the
circumstances
 Note: arbitrators have reinstated about one-half of discharged employees
 
DECIDING WHAT IS "APPROPRIATE DISCIPLINE"?
 Employer is required to assess the degree to which mitigating factors are present in any incident
before deciding upon disciplinary penalty
CRITERIA FOR APPROPRIATE DISCIPLINARY ACTION (USED BY ARBITRATORS & WHICH MANAGERS
SHOULD THEREFORE ALSO USE) X9
1. Severity of the offence: e.g.,: contrast insubordination or theft with lateness
2. Length of service with employer: seniority shows some success on the job & investment of time
3. Employee's work record & presence of previous disciplinary action: less weight given to minor
incidents and to discipline given in the more distant past
 4. Was employee provoked?
a. If employee was provoked, then an offence may merit a lesser penalty
5. Was offence premeditated/deliberate or a momentary aberration?
a. e.g. contrast planned theft with unplanned subordination. (sometimes a sudden,
emotional reaction results in lesser penalty)
6. Would penalty create special undue economic hardship for employee
a. e.g. discharge may be too severe for an older worker with poor job prospects (only used
in cases of extreme hardship)
7. Were employer rules uniformly enforced? Rules must apply to all & be enforced consistently
8. Were rules brought to attention of employees? And if rules were changed, this must be made
clear
9. Offending employee's failure to apologize, show remorse, or show understanding of
wrongdoing: this helps "predict" employee's future prospects for improved, acceptable
behaviour
 
DOCTRINE OF THE CUOLMINATING INCIDENT
 Employer can only impose discipline upon the occurrence of some misconduct
 Minor misconduct (if & when it occurs) leads to the opening of an employee's previous work
record
 If the overall record is poor enough, suspension or discharge may be warranted even though the
culminating incident itself is minor
 Multiple minor offences may therefore result in penalties of increasing severity
 (time limits for disciplinary record may apply)
 
WHEN IMPOSING DISCIPLINE EMPLOYERS SHOULD? X8
1. Ensure CA procedures are followed
2. Communicate employer rules & enforce them consistently
3. Investigate misconduct (interview witnesses; review written documents)
4. Inform employee of alleged misconduct & allow opportunity to respond
5. Review 9 criteria used by arbitrators
6. Refer to all misconduct that is basis for discipline (including previous misconduct)
7. Consider option of last chance agreement
8. In disciplinary meeting & letter, inform employee of:
a. Misconduct
 b. Discipline imposed
c. Future consequences of misconduct &
d. Expectations of future behaviour
 
CULPABLE VS. INNOCENT ABSENTEEISM
 Culpable absenteeism: "mea culpa!"
o Employee is at fault for absenteeism
o Employer can impose discipline
o e.g.: "too intoxicated to go to work"
 Innocent absenteeism
o Employee has no control over absenteeism
o e.g.: illness/increment weather/family issue
o Employer can not impose discipline, BUT see next slide
NON-DISCIPLINARY DISCHARGE
 Employers may terminate an employee for innocent absenteeism when:
o Past absence is significantly greater than bargaining unit average
o No likelihood of future improvement
o Employer has accommodated employee to the point of undue hardship
o Must try to accommodate first!