19 Progressive Discipline and Termination Processes

According to Indiana University Organizational Development “Progressive discipline is the process of using increasingly severe steps or measures when an employee fails to correct a problem after being given a reasonable opportunity to do so. The underlying principle of sound progressive discipline is to use the least severe action that you believe is necessary to correct the undesirable situation” (Indiana University Human Resources, n.d.).

There are usually two reasons for disciplining employees: performance problems and misconduct.

Misconduct is generally the more serious problem as it is often deliberate, exhibited by acts of defiance. In contrast, poor performance is more often the result of lack of training, skills, or motivation. Performance problems can often be solved through coaching and performance management, while misconduct normally calls for progressive discipline. Sometimes extreme cases of misconduct are grounds for immediate termination.

Managers often cite the following behaviour when identifying what they perceive to be poor worker performance or misconduct:

• Lack of skills or knowledge
• Lack of motivation
• Poor attitude
• Lack of effort or misconduct (working at a reduced speed, poor quality, tardiness, sleeping on the job, wasting time)
• Poor co-worker relations (arguing on the job, lack of cooperation)
• Poor subordinate-supervisor relations (insubordination, lack of follow-through)
• Inappropriate supervisor-subordinate relations (favouritism, withholding of key information, mistreatment, abuse of power)
• Mishandling company property (misuse of tools, neglect)
• Harassment or workplace violence (verbal or physical abuse, threats, bullying)
• Dishonesty
• Disregard for safety practices (not wearing safety equipment, horseplay, carrying weapons on the job, working under the influence of alcohol or drugs)

The steps of progressive discipline

Company policies on discipline should strive for fairness by adhering to these criteria:

• Develop clear, fair rules and consequences.
• Clearly communicate policies.
• Conduct a fair investigation.
• Balance consistency with flexibility.
• Use corrective action, not punishment.

When an employee must be disciplined, typically these steps are followed:

1. Verbal counselling
2. Written warning
3. Suspension without pay
4. Termination

After each step before termination, the employee should be given an opportunity to correct the problem or behaviour. If he or she fails to do so, the final step is taken: termination.

Step 1: Verbal counselling

Verbal counselling is usually the initial step. Verbal counselling sessions are used to bring a problem to the attention of the employee before it becomes so serious that it has to become part of a written warning and placed in the employee’s file.

The purpose of the initial discussion is to alleviate misunderstandings and clarify the direction for necessary and successful correction. Most discipline problems can be solved at this stage if the matter is approached constructively and if the employee can be engaged in seeking solutions. This is usually effective because most people don’t want the disciplinary process to escalate.

Tips for the verbal counselling discussion:

• Conduct the counselling session in private. Keep the tone low-key, friendly yet firm.
• Tell the employee the purpose for the discussion. Identify the problems specifically and ensure the employee understands expectations.
• Have documentation available to serve as a basis for the discussion, but try not to read from a list as this might lead the employee to feel defensive.
• Seek input from the employee about his or her perceptions of causes of problems.
• Where possible, identify solutions together. If this is not possible, clearly state your desired solution.
• Be sure the employee understands your expectations; ask him or her to describe the standard involved and how he or she will behave to correct the problem.
• Let the employee know that possible disciplinary action may follow if the problem is not corrected.
• Ask for a commitment from the employee to resolve the problem.

It isn’t necessary to complete a formal document of the counselling session as it is considered an informal step in progressive discipline. However, you may want to write a brief statement confirming the subject matter discussed and the agreed-upon course of action to correct the problem. This can be a useful reference later if further discipline is needed.

After an appropriate period, be sure to schedule a follow-up meeting with the employee. Provide opportunities for two-way feedback and discussion. Let the employee know how he or she is progressing and ask how the new procedures or behaviours are working.

Step 2: Written warning

If the problem is not resolved, you will need to prepare the written warning. Include in the warning information, responses, and commitments already made in the verbal counselling session.

The written warning has three parts:

• A statement that the verbal discussion has occurred, which reviewed the employee’s history with respect to the problem. Be sure to include the date the verbal discussion took place.
• A statement about the present, including a description of the current situation and including the employee’s explanation or response. Use the “who, what, when” model to be sure you include all necessary details.
• A statement of the future, describing your expectations and the consequences of continued failure to correct the problem. This step may be repeated in the future with stronger consequence statements, so be clear on what the next step is. For example, this statement might state that the situation “may lead to further disciplinary action” or, in a later warning, “this is a final warning and failure to correct the problem will lead to discharge.”

By documenting these conversations, you cover yourself in legal disputes that may arise from terminations. Here are some guidelines for documenting written warnings:

• Clearly identify the performance issue that needs to be resolved.
• Give the employee the opportunity to propose a solution to the issue with you.
• Agree on the solution, and document what is going to change. Include a section on how the employer will help the employee change the behaviour.
• If appropriate, agree on a date when you will review the situation together, and ensure that the performance issue has changed for the better.
• Ensure that the employee understands the repercussions if the behaviour does not change. This must also be documented on the progressive discipline form.
• Both the employee and the employer should sign this written record of the conversation that outlines the issue, the solution, and the timeline for the change.
• Give the employee a copy of the written documentation for his or her own records.
• Follow-up on the agreed-upon date.

Step 3: Suspension without pay

Depending on the situation there are times when it is appropriate to suspend an employee and times when it is not. The rules on suspending employees without pay may depend on the specific situation, and, therefore, it is advised that employers review the BC Employment Standards Act (or other provincial employment standards legislation) before carrying out a suspension without pay.

Step 4: Termination

If a problem is not resolved after appropriate warning, you may have to terminate an employee. As well, there may be cases when you want to terminate an employee immediately before going through steps 1 to 3.

Employment standards legislation in most provinces establishes a three-month probationary period during which an employee can be terminated for any reason, without notice. The only exceptions to termination within the probation period are any reason deemed discriminatory under human rights legislation, such as religious beliefs or nationality.

BC Employment Standards Branch video on Termination of Employment.

After the probationary period, the employer must have just cause for termination or otherwise provide sufficient notice or severance. It is recommended that you consult with your provincial labour regulations to confirm what is deemed “just cause.” Poor work performance is not normally considered just cause unless the progressive discipline process has been followed and the employee has been given sufficient time to improve. Just cause normally includes any of the following as grounds for immediate dismissal:

• Theft, fraud, or embezzlement
• Fighting
• Working while under the influence of drugs or alcohol
• Any conduct that threatens the safety of others
• Gross insubordination

Appropriate level of discipline

It is important to determine the proper level of discipline in each situation. In other words, “the punishment must fit the crime.”

First, consistency in discipline is important. How others have been treated for similar infractions should provide the primary basis for determining appropriate action, but there are several factors that may justify increasing or decreasing the level of discipline:

• The employee’s length of service
• Previous record of performance and conduct
• Whether the employee was provoked
• Whether the misconduct was premeditated or a spur-of-the-moment lack of judgment (i.e., was it with or without intent?)
• Whether the employee knew the rules and those rules have been consistently enforced on others
• Whether the employee acknowledges the mistake and shows remorse

After considering all of these factors, there still may be times when you believe it is best for the business to terminate an employee, particularly if you determine that a particular person or situation is likely to be a chronic problem. Paying the required severance, or termination pay, is a small cost compared to the damage a problem employee can cause.

How to terminate an employee

If you are going to terminate an employee, you must have all the pertinent documentation in order and follow all the rules. If you do not, you risk legal repercussions for wrongful termination.

If you have a human resources department, it is advisable to discuss the termination process with them beforehand. If your business is small and there is no formal human resources function, be sure you follow the employment standards regulations for your jurisdiction. If you feel unsure about any rule, you may want to contact a similar business that has a human resource department or the provincial Employment Standards Branch for advice.

Regardless of the specific rules for your jurisdiction, you should follow these general steps when terminating an employee:

• A discussion with the employee must occur before a final determination is reached. Inform the employee about the nature of the problem.
• The employee must be given an opportunity to explain his or her action and to provide information.
• If the employee provides pertinent information, you must investigate where appropriate.
• A written notice of termination must be prepared after the discussion and consideration of all available information.
• When you meet with the employee for the final termination meeting, hold it in a private location where the employee will not have to walk past co-workers afterwards.
• Have a witness or backup present in case the conversation gets heated.
• Explain how the employee has continued to perform below expectations. Refer to warnings given earlier.
• Announce the termination.
• Collect all property of the company, such as keys and uniforms.
• Ensure that the employee’s hours of work are sent to the payroll department, and final cheques and vacation pay are paid out according to the provincial regulations.
• Inform the employee of any information they need to know, such as when the final paycheque will be ready if not already available, where to hand in keys and uniform, and if and when there will be an exit interview.

In all termination cases, aim to preserve the dignity of the employee and to have him or her leave with the feeling of being treated fairly and with respect.