Disciplinary Measures: Legal Obligations and Best Practices
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Overview of incidents that require disciplinary measures: when do you resort to discipline and why it is necessary in order to maintain a healthy work environment • What are the legal obligations that an employer must adhere to? • Different types of discipline: progressive and positive • Taking the stand to discipline a staff member: how do you initiate and complete this difficult task • Making sure staff know what is expected behaviour in order to avoid the "I didn't know" excuse • Ensuring disciplinary measures are consistent in order to avoid discrimination charges
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Disciplinary Measures: Legal Obligations and Best Practices
- 1. Disciplinary Measures: Legal Obligations & Best Practices 11 am Dec 6th, 2012 Whitehorse, YT Canada 1045 Chris Hylton 800 449-5866 chris@hylton.ca
- 2. Agenda 2 Overview of incidents that require disciplinary measures: when do you resort to discipline and the need to maintain a healthy work environment The legal obligations of an employer Types of discipline: Progressive Positive CG Hylton Inc
- 3. Agenda 3 Taking a stand to discipline a staff member How do you initiate and complete this difficult task Making sure staff know what is expected behaviour in order to avoid the "I didn't know" excuse Ensuring disciplinary measures are consistent in order to avoid discrimination CG Hylton Inc charges
- 4. 4 Do you have any workplace issues we can try and solve for you in this session? CG Hylton Inc
- 5. What simple tools can cure 5 many bad behaviours? CG Hylton Inc
- 6. Light 6 CG Hylton Inc
- 7. Mirror 7 CG Hylton Inc
- 8. Overview 8 All work settings generate disagreements among staff Disagreements, whether involving individuals or groups of individuals, are inevitable. It would be an unusual workplace to not have any differences of opinion. It would also be a place stuck in the past if there were not new ideas on how to do things CG Hylton Inc
- 9. Overview 9 Conflicts can be a plus, yielding improvements or suggestions for improvements The problem isn’t necessarily with conflicts but how we deal with them What is the simplest method of dealing with conflict? CG Hylton Inc
- 10. Ignore the issue 10 Sometimes, ignoring the issue or attempting to forget about it, just does not work The problem affects other situations and does not go away CG Hylton Inc
- 11. What are the sources of 11 Conflict? Any ideas please? CG Hylton Inc
- 12. There can be many sources of 12 conflict How people talk (or don’t talk) to each other How information is shared and handled How people deal with each other (relationships) CG Hylton Inc
- 13. Sources of Conflict 13 Differences in values and what’s important (priorities) How and when things are done (procedures, scheduling) How work and responsibilities are arranged (work structure and distribution) CG Hylton Inc
- 14. Spectrum of Responses 14 Ignoring ………………….Going to Court In between are Discuss Negotiate Mediation (third party) Arbitration (third party - union) Investigation (third party CG Hylton Inc
- 15. Harassment Investigation 15 Nurse alleges lateral violence from another employee and lodges complaint thru union There is a union It is a small workplace Employer hires an Investigator, with agreement of union CG Hylton Inc
- 16. Goal of Investigation 16 The goal of our investigation is to try to find out what actually occurred, to establish whether what happened is in violation of policy or law, then work with the employer to seek remedies that address the concerns of all parties in a respectful and constructive manner. CG Hylton Inc
- 17. Typical Investigation Team 17 Two Investigators involved Use rigorous set of questions to determine facts, not judge Focus on facts not emotions or opinions Make all witnesses and complainant comfortable After witnesses do redirect interviews with complainant then respondent Analysis Write report CG Hylton Inc
- 18. Typical Questions 18 Can you tell me about the incident(s) that prompted you to file a complaint? What role does this person have in connection with your work (i.e., supervisor, co-worker, supervise)? What kind of conduct has this person engaged in that you find offensive? When and where did the behavior occur? CG Hylton Inc
- 19. Typical Questions 19 How often did a particular behavior described occur? Did you keep a journal, diary, or record of the events you’ve described? If so, request a copy. What was the effect of this behavior on you? Did it affect your work? How? How did you respond? Did you indicate that the behavior was unwelcome? How? Do you know of anyone else who has experienced similar behavior? CG Hylton Inc
- 20. Typical Questions 20 Were there any witnesses? Who? Did you tell anyone else what happened? Who? When? Why did you tell that person? What did that person do? Do you have any documentation pertaining to your complaint? If so, request a copy. What would the client like to see as the outcome of this process (e.g., to have the behavior stopped, counseling or discipline, CG Hylton Inc etc.)?
- 21. Investigation Final Report 21 A description of the allegations A description of the investigation process we undertook A description of the background information and evidence that supports or refutes each allegation An analysis of the evidence in respect to each allegation A statement as to whether or not the behaviour described in each allegation constitutes a breach of the Policy CG Hylton Inc
- 22. Problems Requiring 22 Special Attention Absenteeism and tardiness Insubordination and uncooperativeness Alcohol / drug abuse Workplace violence Theft CG Hylton Inc
- 23. Absenteeism and Tardiness 23 The most common reasons given for taking unscheduled time off are personal illness and family issues. CG Hylton Inc
- 24. Absenteeism and Tardiness 24 To help reduce absenteeism: Initiate paid time off banks, time in lieu Initiate flex time, it costs you nothing CG Hylton Inc
- 25. Insubordination 25 Insubordination thedeliberate refusal to do what a supervisor or other superior asks CG Hylton Inc
- 26. Insubordination 26 Insubordination and uncooperativeness Criticizing Complaining Showing a dislike for a supervisor and the organization Poor work habits CG Hylton Inc
- 27. Solution? Any ideas? 27 CG Hylton Inc
- 28. Alcohol and Drug Abuse 28 Alcohol and drug abuse About 1 out of 10 workers abuse or are dependent on alcohol or drugs Need to treat substance abuse arising from an addiction as a disability Actions taken with regard to the employee should focus on work performance, not the substance abuse itself CG Hylton Inc
- 29. Solution? Any ideas? 29 CG Hylton Inc
- 30. Workplace Violence 30 Security managers say that workplace violence is their number one security threat An estimated 2 million incidents of workplace violence occur each year. Workers who abuse alcohol or drugs or who have psychological problems may be more likely to engage in violence at work. CG Hylton Inc
- 31. Workplace Violence 31 Domestic violence is a contributing factor to workplace violence. Domestic violence is behind millions of days of absences each year, and millions more in lost productivity CG Hylton Inc
- 32. Solution? Any ideas? 32 CG Hylton Inc
- 33. Theft 33 The largest cause of missing goods and money for retailers is employee theft, not shoplifting “Stealing time” / Internet surfing are also considered theft. Information theft is a serious and growing problem. CG Hylton Inc
- 34. Average Amount Lost per 12- 34 Employee Theft CG Hylton Inc
- 35. Second chance for theft? 35 CG Hylton Inc
- 36. Solution? Any ideas? 36 CG Hylton Inc
- 37. Problems Requiring 37 Special Attention Questions to help uncover the true source of a performance problem: Has the employee performed better in the past? Has the employee received proper training? Does the employee know and understand the objectives he or she is to accomplish? CG Hylton Inc
- 38. Problems Requiring 38 Special Attention Questions to help uncover the true source of a performance problem: Is the supervisor providing enough feedback and support? Has the supervisor encouraged and rewarded high performance? Are other employees with similar abilities performing well or experiencing similar difficulties? CG Hylton Inc
- 39. Potential Problem Employees 39 CG Hylton Inc
- 40. The Cheater 40 Resumes The Interview CG Hylton Inc
- 41. Family members in workplace 41 CG Hylton Inc
- 42. Gossiper 42 CG Hylton Inc
- 43. Bully 43 CG Hylton Inc
- 44. Conflict of interest at Work 44 Does anyone have any stories to share, you don’t need to name names CG Hylton Inc
- 45. Conflict of Interest 45 CG Hylton Inc
- 46. What is the responsibility of the 46 Employer? Safe workplace Working conditions are satisfactory Employees will not get hurt Harrassment free & bully free Governed by Occupational Health & Safety laws CG Hylton Inc
- 47. Positive vs. 47 Progressive Discipline CG Hylton Inc
- 48. It began with a potato chip! 48 Grote, Dick. (2006). Discipline without punishment: The proven strategy that turns problem employees into superior performers CG Hylton Inc
- 49. What is Positive Discipline? 49 Provides for recognition of good performance exhibited by the majority of our employees. A system that provides a way of solving employee performance and conduct problems by focusing on an adult to adult relationship. Requires employees to take responsibility for their own behavior. CG Hylton Inc
- 50. What is Positive Discipline? 50 Innovative Process for addressing performance in the work place. Is not punitive in nature Encourages communication CG Hylton Inc
- 51. Why change? 51 Traditional “Progressive Discipline” system Reflects 1930’’s labor vs. management assumptions Goal is COMPLIANCE, not COMMITMENT Did not reinforce a positive change Often results in disharmony and the lack of trust in the workplace CG Hylton Inc
- 52. What's wrong with the old system? 52 Minimal level of communication focused on what is being done right Conflicts with organizational values Managers solve employee problems instead of employees taking responsibility for problems The carrot or the stick? CG Hylton Inc
- 53. Problem with Progressive 53 Discipline focusing on past behaviour focusing on a problem employee instead of an employee with a problem emphasizing punishment over problem solving; treating the employee like a child creating an adversarial situation Failing to actively assist the employee ito improve performance. Hylton Inc CG
- 54. Advantage of Positive Discipline? 54 1. More frequent recognition of job well done 2. Confidence that managers/supervisors will confront workers who do not share the same work ethics and commitment 3. Employees will be treated equitably and fairly in the discipline CG Hylton Inc
- 55. What’s the advantage for 55 employees? 4. Supportive of a high performance environment. 5. Provides reference guide (matrix) for movement though the process for both managers and employees – no surprises. 6. Managers given discretion to manage and provide feedback to staff. Inc CG Hylton
- 56. 56 CG Hylton Inc
- 57. Informal Positive Discipline Communications 57 Positive contacts Performance Improvement Discussions (PID) CG Hylton Inc
- 58. Formal Positive Discipline Communications 58 Reminder 1 Reminder 2 Decision Making Leave (DML) Termination CG Hylton Inc
- 59. What is a Decision Making Leave? 59 A Decision Making Leave (DML) is a one- day disciplinary suspension with pay It is the final step in the Positive Discipline procedure CG Hylton Inc
- 60. What is a Decision Making Leave? DML 60 On the “Decision Day” the employee must decide: Either: 1. SOLVE the immediate problem and COMMIT to maintaining a fully acceptable performance in every area of the job or 2. RESIGN, and find more satisfying work elsewhere. CG Hylton Inc
- 61. Employee Rights During 61 Disciplinary Process Know expectations and consequences of not fulfilling those expectations Receive consistent management response to rule violations Receive fair discipline based on facts Be able to question management’s statement of the facts and to present rebuttal Receive progressive or positive discipline Be able to appeal a disciplinary action CG Hylton Inc
- 62. Termination Provisions Still in 62 Play Canada Labour Code +3 mos service – 2 weeks notice or pay YT Employment Standards +6 mos service – 1 weeks notice or pay CG Hylton Inc
- 63. What did we miss 63 Taking a stand to discipline a staff member How do you initiate and complete this difficult task Making sure staff know what is expected behaviour in order to avoid the "I didn't know" excuse Ensuring disciplinary measures are consistent in order to avoid discrimination CG Hylton Inc charges
- 64. Thank you! CG Hylton Inc would like to thank you for the opportunity to meet with you today Questions? chris@hylton.ca 800 449-5866
Notas do Editor
- Disciplinary Measures: Legal Obligations and Best PracticesChris Hylton, For Julie Belly HR Manager, De’ton Cho Corporation • Overview of incidents that require disciplinary measures: when do youresort to discipline and why it is necessary in order to maintain a healthywork environment• What are the legal obligations that an employer must adhere to?• Different types of discipline: progressive and positive• Taking the stand to discipline a staff member: how do you initiate andcomplete this difficult task• Making sure staff know what is expected behaviour in order to avoid the "Ididn't know" excuse• Ensuring disciplinary measures are consistent in order to avoid discriminationcharges
- There can be many sources of conflict in an organization, including;How people talk (or don’t talk) to each otherHow information is shared and handledHow people deal with each other (relationships)Differences in values and what’s important (priorities)How and when things are done ( procedures, scheduling)How work and responsibilities are arranged ( work structure and distribution)Consequences of conflict may include;Increased frustration or anxietyStrained relationshipsLoss of sleepUnhealthy competition between colleagues and work unitsWithholding of informationLow morale and motivationHigh employee turnoverWork stoppages and loss of productive timeInefficiency and low productivityIncreased worker and client complaintsAbsenteeism SabotageIf turning your back on matters is at one end of the spectrum, then going to court to resolve the matter is at the other end of the spectrum;IgnoreDiscussNegotiateFacilitateMediateArbitration (Union setting)CourtVarious means exist for dealing with conflicts before they go to court. While good intentions help, they aren’t enough to settle differences in the workplace. It is important to have a clear plan and direction for dealing with disputes. One variation for settling a dispute is mediation
- There can be many sources of conflict in an organization, including;How people talk (or don’t talk) to each otherHow information is shared and handledHow people deal with each other (relationships)Differences in values and what’s important (priorities)How and when things are done ( procedures, scheduling)How work and responsibilities are arranged ( work structure and distribution)
- Typical Questions:Typical questions that we would start with are as follows. We then probe deeper for clarity and facts.Can you tell me about the incident(s) that prompted you to file a complaint?What role does this person have in connection with your work (i.e., supervisor, co-worker, supervise)?What kind of conduct has this person engaged in that you find offensive?When and where did the behavior occur? How often did a particular behavior described occur?Did you keep a journal, diary, or record of the events you’ve described? If so, request a copy.What was the effect of this behavior on you? Did it affect your work? How? How did you respond?Did you indicate that the behavior was unwelcome? How?Do you know of anyone else who has experienced similar behavior?Were there any witnesses? Who? Did you tell anyone else what happened? Who? When? Why did you tell that person? What did that person do?Do you have any documentation pertaining to your complaint? If so, request a copy.What would the client like to see as the outcome of this process (e.g., to have the behavior stopped, counseling or discipline, etc.)?
- Conflict of interest does not relate exclusively to matters concerning financial transactions and the transfer of economic benefit. While financial activity is important, conflicts of interest in any area of activity can have a negative impact on the perceived objectivity of the public service. With the permanent and pervasive nature of information technology, public servants should be particularly sensitive to real, apparent or potential conflicts of interest that may arise from messages and information transmitted via the Internet and other media. http://www.fin.gc.ca/afc/cc-eng.asp#a44The Board of Ethics defines professional “conflict of interest” as a situation in which personal and/or financial considerations have the potential to influence or compromise professional judgment in clinical service, research, consultation, instruction, administration, or any other professional activity. http://www.asha.org/policy/ET2011-00320.htmA personal conflict of interest is a situation where a person's private interests — such as outside professional relationships or personal financial assets — interfere or may be perceived to interfere with his/her performance of official duties.As staff, we should always strive to avoid situations where we benefit personally or allow others to benefit personally from the decisions we make for the UN. We need to be aware of how our actions, in the absence of an explanation, may appear or be interpreted by others. Sometimes, the perception of a conflict of interest raises as much ethical concern as does an actual conflict of interest. Conflict of interest situations do not necessarily imply wrongdoing. However, if they are not identified and managed appropriately, they can compromise our work and the Organization's integrity. When each of us avoids the perception and the reality of a conflict of interest, we can help preserve our independence and impartiality. One of the key steps in avoiding or resolving a conflict of interest is to ensure that we place the UN's interests above our own. http://www.un.org/en/ethics/conflictofinterest.shtml The term prejudicial interest is used to describe a particular type of conflict of interest involving councillors. When a councillor has an interest in a topic under debate that may affect their ability to fairly and objectively consider the subject, he or she is said to have a prejudicial interest. An example would be a councillor discussing a planning application for a company in which he or she has an interest. The councillor has an interest in the plans being approved and is therefore considered to have a "prejudicial interest". Source: http://en.wikipedia.org/wiki/Prejudicial_interest
- More than 35 years ago, Dick Grote was the manager of training and development for Frito-Lay, one of America’s most sophisticated and best managed companies. Out of the blue, they found themselves ensnared in a PR nightmare. Day after day, mailbags arrived at Frito-Lay’s corporate headquarters filled with angry letters from angry customers, each letter reporting the same bizarre problem: The customer had discovered an obscene message written on a potato chip. All of the chips in question had been produced at the same plant – a plant that in the previous 9 months had fired 58 of its 210 employees for various breaches of discipline. The climate at that particular plant was toxic while supervisors were using a traditional “progressive discipline” system for all violations, serious or trivial. Dick soon realized the issue was not with the disciplinary problems in the plant but the disciplinary system itself…and then DWP was born.A year after implementing this new process, terminations at that plant had dropped from 58 to 19; the following year, they were down to 2.
- Traditional progressive discipline system was created by unions around 1930s to keep workers from losing their jobs before having a chance to correct the problem. It is outdated and punitive in nature. It promotes a system of power imbalance and is “America’s criminal justice system brought into corporation.”The developers of DWP agreed that when a person fell short, they had the responsibility to bring the difference between what was expected and what was delivered to that person’s attention while providing him/her with the guidance and the incentive to meet the set goals. They also realized that, in those few cases where an individual consistently failed to perform to their standards, they had the responsibility to that person’s co-workers not to allow him/her to stay in a job where others were then forced to take up the slack.
- Currently, "progressive discipline" is generally accepted as the most effective approach to dealing with human resource management problems. Essentially, progressive discipline involves a series of escalating repercussions in response to repeated employment-related violations by a worker. Following the initial violation, the superviser will give the worker an oral warning (counselling). A second violation leads to a written reprimand. A third violation generally results in a disciplinary suspension (without pay), and further violations are considered cause for dismissal. In this manner, the employee is given several opportunities to improve conduct, and ample warning that repeated violations will result in termination. Arbitrators have expressed a preference for this approach because, as a punishment theory, it is perceived as being fairest for the employee.Despite its widespread use, the concept of progressive discipline is by no means universally applauded. It has been pointed out that, “in spite of the fact that the system follows the pattern recommended by arbitrators and most human resources textbooks and produces a great deal of disciplining, little discipline actually exists in the work place.” It is argued that several aspects of the traditional notion of progressive discipline prevent it from being an effective remedy for the ills that afflict the North American work place. One problem is that its object is "too limited or just plain wrong. The ... goal is to force employees to comply with the rules and policies of the employer.” It is asserted that this object should be taken further, to "develop employees who have a sense of their own responsibilities and try to fulfil them, with rule compliance as a by-product only.” This problem is compounded by other factors, such as: focusing on past behaviour; focusing on a problem employee instead of an employee with a problem; emphasizing punishment over problem solving; treating the employee like a child; creating an adversarial situation; and failing actively to assist the employee in improving performance.The solution, according to James Redeker, is to transform the process into one where the employee is given positive reinforcement through rewards, support, an opportunity to participate in solving a problem, and being treated with respect and tact. Failure to improve still results, ultimately, in termination, but the process ensures that the employees recognize their share of the responsibility for that result.The central theme of "non-punitive" progressive discipline is the emphasis of the positive wherever possible, by encouraging workers to see themselves as responsible individuals taking part in a concerted effort to achieve a shared objective.Redeker makes it clear that "non-punitive" progressive discipline requires more skill and effort on the part of supervisors, but he asserts that "if the employer wants employees who are as productive as possible and wants to maximize the return on the training investment, non-punitive discipline in the hands of trained supervisors is the way to go."18Adapted From: Royal Canadian Mounted Police External Review Committeehttp://www.erc-cee.gc.ca/publications/discussion/dp6-eng.aspx
- Positive contacts – recognizing good performance which is the majority of employees. It’s as important as recognizing or confronting poor performance. Can be spontaneous and unplanned. Documented or not.Performance Improvement Discussions – Is not spontaneous and unplanned – requires supervisor to make notes in advance of the meeting and conduct the meeting with all of the seriousness of a formal disciplinary transaction, but to advise the employee the difference between the two. Purpose: To avoid the need for any more serious action.
- Purpose of Formal Communications: to bring about a change in the employee’s behavior or performance.Reminder 1: individual is reminded of (1) the company’s expectations such as performance expectation or job standard that the individual is failing to meet. (2) the employee’s personal responsibility – reminded that it is he who is responsible for meeting the company’s standards. **Slate is wiped clean if no further incidents requiring disciplinary action arise within 6 months Reminder 2: parallels Reminder 1 – employee will receive memo after the meeting documenting the transaction. **Deactivated and removed if no further incidents requiring disciplinary action arise within 9 months Decision Making Leave – a day off with pay to consider employment and to decide if the individual wants to continue employment with the organization. Must return the next day with a decision to either solve the immediate problem and make a commitment to acceptable performance in all areas of the job or decide to terminate employment with the employer. **Deactivation occurs if no further incidents requiring disciplinary action arise within 12 monthsTermination – occurs following a decision making leave in which the employee requires disciplinary action