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Legalese: Progressive discipline

You know that your employees are critical to the success of your organization. Productive, happy employees will make your business more successful. The manner in which you discipline your employees can have very important productivity-related and legal ramifications.


May 17, 2016
By Deryk Coward

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Progressive discipline is the appropriate process to use in order to effectively deal with sub-standard job performance. Most sub-standard job performance issues do not entitle an employer to automatically terminate the employment relationship. They could, however, warrant some form of discipline.

Progressive discipline calls for the discipline meted out to an employee to increase in severity with each and every failure to live up to expectations. Each instance should be formally recorded on an employee’s file. Over time, once an employee has been disciplined on multiple occasions and it’s clear that their behavior is unacceptable and they have failed to correct the problem, the prospect of being able to legally terminate that employee increases.

There are two primary reasons why progressive discipline should be followed. It will allow your employee to understand that their behavior is not up to expectations and will communicate to the affected employee that they should modify that behavior. It will also support you legally from a lawsuit involving an affected employee.

In order to be able to effectively engage in progressive discipline, it is important that the expectations of your employees have been clearly and concisely outlined. If your employees do not know the standards to which they are being held it would be unfair to discipline them for failing to meet those unknown standards. In a perfect world, the expectations for your employees should be codified in a written employment contract. If you don’t have employment contracts, you can nonetheless communicate acceptable standards through company policy and other written means.

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Examples of things which could attract the need for progressive discipline include but certainly are not limited to proper business attire, swearing and other abusive behaviour, lateness and absenteeism, renting company equipment for personal use and safety issues.

An example would be an employee who is habitually late by 15 or 30 minutes on a regular basis. Let’s say that you like this employee and that he/she is fine in other respects, but the fact that they are always running late is something that has troubled you for a long time. It would be inappropriate for you to terminate their employment abruptly after never having said anything to them. Rather, you should  clearly spell out the expectations of your organization for punctuality and give a verbal warning the first time the employee arrives late. Suspend the employee for a very short period of time, the next time it happens, then suspend the employee for a slightly longer period of time if it happens again. Ultimately, if the situation does not improve, you may be able to legally terminate the subject employee.

Generally, the discipline should correspond to the seriousness of the issue. The level of discipline warranted for tardiness would be less than, say, a breach of your company safety policy.

All steps taken with respect to progressive discipline should be recorded in the employee’s personnel file. The affected employee should know why they have been disciplined, and should be given a clear way to improve their behavior, correct the issue and thereby avoid future discipline.

Nothing in this article is intended as legal advice, as every situation is different. Since labour laws vary from province to province, it’s important that you consult with a lawyer in your jurisdiction who practices labour and employment law. 


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