You and/or a senior member of your organization must find out all the details of the behaviour or performance issue to decide if progressive discipline is required. While the steps and methods will vary based on the circumstances, you should quickly gather information to learn the facts of the situation.
If this is a minor performance or behavioural issue, such as attendance, fact-finding can be carried out during regular supervisory meetings.
However, if the employee issue is more serious, such as a one-time major rule or policy violation, a separate fact-finding process should be followed, and the employee should be told what the process will be. This is also where you should consider whether external expertise, such as through a consultant or lawyer, is required.
In the most serious circumstances, removing the employee from the workplace while carrying out fact-finding may be required to protect other staff’s health and safety. You should also consider whether you have the necessary knowledge and skills to conduct the investigation and engage external professional help.
Information gathering may involve:
- Visiting the worksite or work location.
- Observing tools, equipment, or vehicles that might have been involved.
- Gathering and reviewing written documentation, including your organization’s policies related to performance and conduct. This includes code of conduct, anti-harassment, anti-discrimination policies, emails, communication logs, meeting notes, text messages. In some cases, security camera footage may need to be obtained.
- The employee’s record, including performance management documents and any prior disciplinary notices.
- Meeting with other employees or volunteers who may have observed an employee’s actions or been involved in the situation. Be sure to not ask any leading questions during this process.
Information should be gathered in a confidential manner, ensuring the privacy of all parties involved. Sensitive information should only be shared on a "need to know basis." Once the information gathering process is concluded, all relevant material should be reviewed and evaluated against any existing policies and guidance for performance and conduct in your workplace.
After gathering and evaluating information
If you determine that a policy or procedure violation did not occur, you must notify the employee immediately. If you removed the employee from the workplace during the fact-finding process, you should reinstate them as soon as possible and pay them for the time that you suspended them, if they were on an unpaid suspension.
If reasonable grounds exist to believe that a violation occurred and discipline should be issued, notify the necessary members of your organization, such as higher levels of management, and continue with determining appropriate action.
Determining appropriate action
Once you have a clearer understanding of the behavioural or performance issue, you will have to determine the seriousness of the situation and the appropriate response. In making this decision, you need to be fair, act in good faith, and ensure that discipline is applied consistently across the organization.
Factors to consider when determining appropriate disciplinary action include:
The employee’s past record
An employee’s length of service and previous record will impact the level of discipline applied. For example, a long-serving employee with a good record will generally receive less severe discipline than a short-term employee with a poor record.
However, lengthy service does not excuse an employee’s misconduct or exclude them from discipline entirely.
When examining an employee’s past record, consider:
- How many times has the problem occurred?
- Has the problem occurred frequently in a relatively short time?
- Has a similar or the same problem happened before?
- How long ago was the previous occurrence?
- Has the employee received prior coaching and/or discipline — and if so, what were the results or outcomes?
- What was the severity of the action taken? Did the action put members of the organization or its clients at risk?
The employee’s intent
If there is strong evidence that an employee knew that their actions could have serious consequences or was aware of the rules and broke them anyway, serious discipline may be more appropriate.
If the problem occurred due to carelessness or inattention, a less serious discipline might be issued.
The severity of the problem
You should determine what infractions would be considered minor, major, and worthy of termination in advance. Then, think about how serious the problem is and its impact on the organization and/or other employees. The severity of infractions should be informed by relevant law/regulations, such as occupational health and safety acts, Canadian Criminal Code, human rights codes, and these should be documented and communicated to all staff regularly.
The severity of infractions may also be dependent on the type of workplace. For example, an office environment may consider smoking on the work premises to be a minor infraction but a chemical plant with flammable substances may consider smoking onsite to be a major infraction due to the potential negative consequences.
The following list shows the different severity of infractions organizations could determine in advance to include in their policy.
- Absences from the assigned work area or work location between scheduled start and end times without notice, or permission from your manager
- Conduct outside of work hours that may discredit the organization in the eyes of the general public or other employees.
- Failure to follow health and safety regulations
- Failure to meet the expectations of the position that are reasonably expected of employees.
- Failure to work a scheduled shift without receiving absence approval
- Giving false information verbally or in writing at any time, including on an application form
- Insubordination or disobedience of reasonable directions issued by a manager
- Possession, intoxication or impairment by alcohol or drugs
- Safety violations
- Sleeping on the job
- Theft of any form including falsifying an organization’s document for personal gain or for the gain of others and unauthorized removal of organizational property or equipment from the work site
- Unethical or criminal actions
- Using profane/abuse language during working hours
- Violating smoking rules
- Violation of federal and/or provincial human rights legislation
- Violence or harassment of any kind to other employees or stakeholders
- Wilful misconduct, disobedience or insubordination
- Wilful neglect of duty or gross violation of organization rules and policies
Uniformity of application
How have other employees been treated for the same behaviour? Discipline for similar situations in similar circumstances must be applied consistently to maintain fairness and employee confidence in the process. It’s more difficult to justify a disciplinary action if it’s inconsistent when compared with discipline given to other employees for similar infractions.
Did the actions of another individual provoke the employee?
Self-awareness and remorse
Has the employee admitted to behaving poorly and apologized for the behaviour? This response is viewed more positively, and it could lessen the level of discipline.
Other mitigating or aggravating circumstances
- Did the employee have access to a policy that described the possibility of disciplinary consequences of their conduct?
- What role might the employee’s supervisor, colleagues, and/or the organization's policies, practices, and culture have played in the situation?
- Was the investigation conducted fairly and objectively?
- Did the investigation produce clear and substantial evidence that the employee committed the infraction?
- Did the organization apply its rules, directions, policies, and procedures without discrimination?
- Does the employee have mental health challenges that may have influenced their behaviour in any way?
Having mental health challenges does not excuse an employee of their actions, but having context is very important. For example, if a racialized member of your staff is dealing with a recent crisis and/or incident within their community and acts unprofessionally toward another colleague, it’s important to note where their behaviour may be stemming from. Under normal circumstances would this member have acted in the same way towards their colleague?