Discipline

Introduction
In the previous modules we reviewed the key provisions of a collective agreement, including
those provisions that were required by law. We noted that while a management rights clause
was not required by law, under the residual rights principle all rights not limited by the collective
agreement were within the purview of management.
Therefore, a management rights clause does help to clarify some of the rights for management.
One of those rights is the ability to discipline employees as required; subject to the terms and
conditions of the collective agreement. This is what we will cover in this module- discipline
techniques and the collective agreement.
As you begin this module, please refer to the timeline and make note of any assessments or
important dates. If you have any questions, ask your instructor.

Learning Outcomes
Upon completion of this module, you will be able to:
1. Describe various types of infractions that are subject to discipline, such as poor work
performance and absenteeism
2. Apply the notion of ‘last straw’ of ‘culminating incident’ to disciplinary cases as
appropriate
3. Apply progressive discipline techniques effectively
4. Differentiate between absenteeism and innocent absenteeism

Key Terms
• Progressive discipline: When an organization uses a series of pre-determined
escalating penalties in the hope that the worker will improve their performance to the
required standards. In theory meant to serve as a deterrent and a guide rather than as
punishment.
• Proportionality: The principle that the punishment must fit the crime. A worker cannot
allege just cause for a minor breach by an employee.
• Culpable infraction: An act for which the employee is at fault and/or blameworthy and
therefore discipline is justified.
• Innocent infraction: A breach of the rules by a worker which may not be held against
them as the breach or action was out of their control. For instance an action or absence
caused by a legitimate illness.
• Condonation: When an employer overlooks an infraction it implies an acceptance by
the employer of the conduct of the employee. The employer cannot discipline the
employee at a later date unless they have provided a warning, for breaking the same
rule or acting in the same manner as the employer has condoned the action.
• Just cause: Serious employee misconduct that warrants dismissal without notice.
• Accommodation: The requirement to make changes to a workplace or a job in order to
accommodate the needs of person or persons protected by the Human Rights Code in
order that they may participate in the workplace.
 • Undue hardship: If the employer can prove that they cannot accommodate the
employee due to the accommodation creating
o i) a serious health and safety concern
o ii) the accommodations required would be so substantial that they would alter the
essential nature of the enterprise
o iii) costs so significant that they would substantially affect the viability of the
organization, then they can claim undue hardship.

Discipline
Discipline may be defined as “the right of the employer to order and direct employees in the
performance of their work and in their conduct in the workplace”.
What does that mean? What this means of course is that management can discipline an
employee as needed, but most do so under whatever terms the agreement requires, for
example, in front of a union steward, or as an aspect of grievance/arbitration process.
Many of the grievances filed by a union during the life of a collective agreement concern
problems of employee discipline. If a disciplinary action goes to arbitration the union is trying to
demonstrate that management did not have just cause for its action. The onus is on
management to prove that its actions were both correct and allowed by the collective
agreement.
As noted earlier, one of the primary rights of management is to hire, fire, promote, demote,
discipline, and run the business as it sees fit, subject to the terms and conditions of the
collective agreement and statutory requirements.
Discipline can be a necessary function of management’s mandate to preserve order in the
workplace. The idea of order in the workplace includes employees being willing and ready to
carry out the legal directions of supervisors, operate within standards of conduct both personal
and professional, and demonstrate good judgment in performing tasks on behalf of the
organization.
Within the context of discipline for infractions, there are mandatory standards of action that must
be met. The discipline issued must be:

• fair
• appropriate to the circumstances
• proportional to the infraction
• progressive in nature (following a prescribed and escalating series of management to
employee communications) consistent with discipline issued to other employees for
similar infractions
• administered with a view to positively change the behaviour so that it meets the required
standards.
Progressive discipline in the labour relations field is intended to be rehabilitative rather than
punitive practice.
Types of Progressive Discipline
In some organizations discipline is somewhat arbitrary, while in other organizations there is a
more systematized progression of discipline. For example: some companies spell out the
specific discipline for a particular infraction. Progressive discipline requires an escalation of
consequences and typically follows the following example:
1. Initially management issues a verbal warning to the employee of an infraction; although
referred to as a ‘verbal,’ this warning is documented. The worker should be provided
with information regarding the type of infraction, what is expected of her/him, any training
or assistance that will be provided to reach the required standard and the time frame
allowed for them to reach that standard.
2. If another infraction occurs or the worker does not meet the required standard of
performance then management provides the employee with a written warning of the
issue requiring resolution. This warming will also include information regarding what is
expected of her/him, any training or assistance that will be provided to reach the
required standard and the time frame allowed for them to reach that standard. It should
also include an explanation of the consequences of not meeting the required standard.
In most cases there can be as many as 1, 2, or 3 written warnings before the discipline
escalates to the next level. The exception would be an action on the part of the
employee that is so serious that it irrevocably breaks the employment relationship.
3. If the issue has not been addressed to management’s satisfaction, and the collective
agreement allows it, then a suspension without pay of 1, 3, or 5 days will be initiated.
Some collective agreements do not allow for suspensions without pay during
investigations of wrongdoing or bad behaviour as this may be regarded as punishing
someone before they have been found guilty of an infraction. Management will wish to
include this right in the collective agreement.
4. Some collective agreements will allow for a permanent or temporary demotion as a
disciplinary practice. Again management will wish to have this right included in the
collective agreement.
5. Finally, if no resolution is found to correct the employee’s infraction termination with
cause will be the result. The collective agreement will often list the types of actions
which will be considered as ‘just cause’ for termination. Unionized employees have the
right to grieve dismissals. This is a major difference between union and non-union
workplaces as non-union workers in Ontario may only launch a civil suit for wrongful
dismissal. Also an arbitrator may order the re-instatement (often with backpay) for
unionized workers who win a dismissal grievance, whereas courts do not order the re-
instatement of non-union workers.
Often unions will attempt to include in the collective agreement a clause that provides for
disciplinary records to be removed after a set period. Once removed, a disciplinary warning or
record may not be used against the employee.

Types of Infractions
Infractions which may require a lower level of discipline, at least initially, might include
absenteeism or failure to report for work. Often absenteeism becomes an ‘infraction’ when it
begins to exceed the ‘plant absenteeism average’. Other examples of low-level infractions
include: leaving work without permission and lateness.
However, some infractions are deemed much more serious than others and require more
significant discipline even upon a first offence. In those more serious cases discipline begins at
a more serious level up to and including discharge. These infractions include: fighting on the
job, insubordination, theft of company (or other) assets, falsifying reports, falsifying employment
credentials, drinking or taking drugs while on duty, being under the influence of alcohol or drugs
on duty, contravention of company policy for example: sexual harassment, and gross
negligence.
In the previously mentioned instances, while management would consider the previous record
of the employee, his/her seniority and other factors, such as whether the infraction was innocent
or culpable, the infraction itself can often be deemed significantly serious enough to warrant
bypassing the initial steps of progressive discipline and progressing directly to either a lengthy
suspension without pay or a termination with cause.

Poor Work Performance

Poor work performance may be considered in one of two ways: The poor performance is a lack
of effort or the poor performance is a lack of ability.
In either case a series of warnings must be given along with a clear set of management
standards for work and expectations. The standard required must be no more than the average
for that role and the worker must be informed of the performance standard required and
provided with a reasonable amount of time to meet that standard. If the poor performance is the
result of an illness or condition which requires accommodation due to Human Rights
considerations, then the employer is required to set different standards regarding performance
to accommodate the worker’s needs. The worker will still need to meet this standard or risk
dismissal.

Absenteeism
Employees are expected to come to work and employers are expected to pay them. Employees
who don’t come to work or who are habitually late for work are subject to discipline.
The standard that is often used is the ‘plant average’ for absenteeism so employees who
exceed the plant average consistently may be disciplined with a series of warnings and
eventually may be discharged.

Innocent Absenteeism
In some very difficult circumstances employees are absent from work due to no fault of their
own, this is referred to as innocent absenteeism. In these rare cases, after all other possible
remedies have been exhausted, employees can be terminated from their employment.

Culpable Absenteeism
If the worker misses work, without a reasonable explanation or cannot provide documentation
demonstrating their need to miss work, then they are guilty of culpable absenteeism. Culpable
absenteeism is treated more seriously than innocent absenteeism.

If the absenteeism is the result of an illness or condition which requires accommodation due to
Human Rights considerations, then the employer is required to set different standards regarding
attendance to accommodate the worker’s needs. The worker will still need to meet this standard
or risk dismissal.

Culminating Incident – The last Straw

On occasion an employee will embark on a course of destructive action that begins with a small
infraction and ends with an incident dubbed ‘the last straw’ that invokes a greater penalty than
any behaviour considered in isolation might have warranted. Generally this applies to
employees who have an extensive disciplinary record. It is again necessary for management to
show that the employee has been subjected to the progressive discipline process.
This generally includes being warned of infractions as they occur including verbal and written
warnings. The warnings must state specifically the standard of conduct or performance
required, the remedies and/or assistance being provided, the time frame for improvement and
that not meeting the stated standard in the required time frame, or breaking any company rules
during a designated time period, ‘will’ result in dismissal for cause.

Summary
In this module we have explored:
1. The reasons for employee discipline
2. How employee discipline is best administered
3. Examples of infractions to which discipline needs to be applied

Knowledge Check
1. The following is not considered a dischargeable first offence.
a. Theft
b. Fighting
c. Lateness
d. Insubordination
2. A suspension is not considered a step in the progressive discipline process.
a. True
b. False
3. An employee can be terminated for ‘innocent absenteeism’.
a. True
b. False
4. Management is fully within its rights to terminate a unionized employee ‘without just
cause’.
a. True
b. False
Answers:
1. C – Lateness
2. B – False
3. A – True
4. B – False
You have completed Discipline.
Remember to check the timeline before you proceed to the next module to ensure you have
completed any assignments as required. Check with your instructor if you have any questions.