Disciplinary Probation

HRinfodesk---Canadian Payroll and Employment Law, April 2005

Disciplinary probation is a process for addressing employee misconduct. It is a sanction imposed by the employer that allows a problem employee to remain employed subject to certain terms and conditions. It allows for a means of correction for on-the-job related behaviour problems and/or performance problems. Probation is one step away from termination and is part of a progressive disciplinary measures policy.

Although employers practice preventative measures and guide employees in attempts to correct undesirable situations, there are times when these methods just do not work. Disciplinary probation can be a very effective form of discipline when employees are experiencing problems with job related performance or have job related behaviour problems. Through counseling, supervisors monitor performance during a specified period of time and encourage employees to improve performance related problems or job related behaviour problems. Disciplinary probation may be imposed for a period of up to six months, but may be extended to a total of one year by the employer. This is a designated time period during which the employee must improve identified deficiencies in their performance or behaviour. Improvement standards and time frames are put into a written Performance Improvement Plan by the supervisor and a copy is given to the employee at the time they are placed on disciplinary probation.

The imposition of disciplinary probation requires that supervisors make a concerted effort to meet regularly with the employee during the probationary period to assist him or her in improving performance or behaviour. A supervisor's failure to meet with the employee on a regular basis and discuss improvements would make this type of discipline ineffective.

Employees on disciplinary probation cannot be promoted or granted merit increases. It is also critical that, should the supervisor not see an acceptable improvement in performance or behaviour during the probationary period, they must extend the probationary period prior to its expiration. Once an employee reaches the six month date when the probation expires, the supervisor cannot retroactively extend the probation. Also, employees granted leave while serving disciplinary probation may have their probation extended by the number of days absent on leave provided the employee receives notice of the extension prior to the expiration of disciplinary probation.

It is important to note that disciplinary probation should not be an employment practice unless it is a term and condition of employment. An employer cannot place an employee on probation for poor performance or misconduct unless their employment contract or written workplace policies provides for that, generally, at the time of hire. If the employer tries to impose probation anyway, the employee may be able to assert constructive dismissal and trigger their right to a termination/severance package. In addition, employers should identify and list offenses which may warrant discipline, suspension or termination. The list does not need to be inclusive of all offences, but is intended to assist employees in knowing what the expected standards of performance and/or conduct are that must be maintained in the workplace subject to the organization’s environment and culture. It will also assist employers to identify examples of offenses within each level of discipline measures.

In addition, disciplinary probation should not apply to new employees on a probationary period following hiring.

A progressive disciplinary policy should have various levels leading to disciplinary probation up to termination. A disciplinary action may begin on any level based upon the severity of the offenses. To illustrate, they are as follows:

Level 1: Verbal Notice

A verbal notice is a verbal discussion between the employee and employer identifying the employee’s on the job related behaviour or performance problem. A verbal notice form identifying the work problem, expected improvements in the employee’s performance or behaviour, and any assistance the employer plans to provide the employee in correcting the problem must be completed. The employer must inform the employee that this is the first level of the formal discipline process. This form is not given to the employee but should be filed in the employee’s personnel file.

Behaviour or performance issues that can result in a verbal notice are: tardiness, unauthorized and/or chronic absence, foul and abusive language, inefficiency, incompetence or negligence and/or failure to abide by the organization’s policies and rules.

Level 2: Written Notice

A written notice is a more formal disciplinary measure for certain conditions or behaviour problems and may be necessary even without a record of prior offenses.

The written notice should indicate the reason for the discipline and the consequences of continued infraction. The notice should also include what specific behaviour or performance must be corrected, a time frame for correction and any commitment on the employee’s part to correct the behaviour or improve performance as well as any assistance the employer intends to provide the employee in correcting such behaviour or performance and any follow-up actions to be taken.

The employer must inform the employee that this is the second level of the formal discipline process. The employee should acknowledge receipt by signing the written warning; their signature should only acknowledge receipt of the written notice. The original written notice should be given to the employee and a copy should be inserted in the employee’s personnel file. The employee should have the opportunity to respond to the written notice and the response should be attached to the written notice.

Behaviour or performance issues that can result in a written notice are: careless use of company property, three days absence without notification and/or chronic absenteeism, insubordination, harassing behaviour and/or carelessness in carrying out assigned duties.

Level 3: Disciplinary Probation

If the employer determines that an employee’s overall performance and/or behaviour is below standards, the employee may be placed on disciplinary probation. The employee will be notified of deficiencies in performance and/or behaviour and, with the employer, will develop a plan of action to improve those identified deficiencies. Disciplinary probation is generally for a period not to exceed one year.

Disciplinacy probation is used instead of a recommendation for termination when the employer feels that the employee is sincere and still capable of correcting his or her behaviour. A disciplinary probation can lead to a recommendation for termination, but need not precede a recommendation for termination.

Employers can base their determination for disciplinary probation on performance reviews, breach of code of conduct policy and other related data. Unless significant satisfactory improvement is made during the disciplinary probation period, termination may be recommended. If the employee has made improvement, but has not yet performed in a manner as to be removed from disciplinary probation, the employer may extend the disciplinary probation period for a time not to exceed one additional year; at the end of which time the employee should either be removed from disciplinary probation or terminated.

The written notice of disciplinary probation should state that the employee is being placed on disciplinary probation, the length of the probation period, the specific deficiencies in performance and/or behaviour, the necessary changes and improvements that need to occur within the probationary period, and the plan of action to improve those deficiencies. The notice must be dated and signed.

A series of counseling sessions or other activities designed to bring about the desired performance and/or behaviour should be held during the probation period. Periodic performance reviews or meetings should be held to monitor the employee’s progress.

Behaviour or performance issues that can result in a written notice are: serious breach of code of conduct and other workplace policy, willful destruction of company property; gross insubordination; theft/fraud (depending on seriousness and specific circumstances such as falsifying time cards or records; violence, and sexual or other forms of harassment, during accommodation dealing with drug and alcohol dependence, among other things. This step may also be necessary for less serious offenses that continue to occur after the employee has gone through level one and two or after an investigation of a serious offence.

For minor infractions or behaviour problems, disciplinary probation is appropriate only after the employee has received verbal and written notices. For major infractions or behaviour problems, disciplinary probation or recommendation for termination may be warranted without a record of prior offenses.

Level 4: Suspension or Recommendation for Termination

Suspension or recommendation for termination may be necessary for serious offence(s) that are criminal in nature or threatening to other employees and/or clients. This step may also be necessary for less serious offenses that continue to occur after the employee has gone through level one and two or during an investigation of a serious offence.

Suspension is used instead of a recommendation for termination when the employer feels that the employee is sincere and capable of correcting his or her behaviour. A suspension can lead to a recommendation for termination, but need not precede a recommendation for termination.

For minor infractions or behaviour problems, suspension is appropriate only after the employee has received verbal and written notices. For major infractions or behaviour problems, suspensions or recommendation for termination may be warranted without a record of prior offenses.

The employee should receive a written notice of disciplinary suspension. The notice should indicate the duration of the suspension, the reason for the suspension, conditions under which the employee can return to work and any assistance the employer plans to provide the employee to correct the problem. A disciplinary interview should follow the notice to re-enforce the notice of disciplinary suspension. The employee should acknowledge receipt of the notice with a signature.

Suspension may be with or without pay at the discretion of the employer, however, which option is available and if and when it can be used must be stated in the policy or employment contract and communicated to employees, prior to suspending an employee without compensation. Suspension can range from one day to a few weeks but rarely exceeds 30 calendar days.

A recommendation for termination should be handled through the normal chain of command and according to workplace policy and practices and legislative requirements.

Behaviour or performance issues that can result in a suspension or recommendation for termination are: intoxication or drug use that cannot be accommodated or depending on the circumstances surrounding the issue; fighting, theft and/or fraud, refusal to work (excluding an organized labour action or under workers’ compensation); willful destruction of company property; gross insubordination; falsifying time cards or records; violence, and sexual or other forms of harassment.

Please note:

Level 3 could be Suspension or Recommendation for Termination followed by level 4 which is a disciplinary probation. The employer can alternate between these two levels depending on the circumstances and/or the seriousness of the offense(s). This should be indicated in the progressive discipline policy.

It is always wise to consult a lawyer prior to any decision to dismiss, even for a small business. In the case of a serious incident, the employer may wish to suspend the individual immediately while they determine the action that needs to be taken.

In addition, before implementing any performance management system or disciplinary policy, employers should ensure that managers or supervisors are properly trained and competent to handle both performance management and disciplinary issues. They must also ensure that they have set clear and attainable standards. The employer should encourage improvement by identifying reasonable performance standards, conducting performance reviews over a reasonable period of time, and warning the employee of the consequences for failing to meet the required standards.

The facts and circumstances surrounding the problem performance and/or behaviour must be examined carefully when applying any level of discipline. Each case is different. The employee’s position and length of service must also be considered. Personality conflicts, general dissatisfaction with performance, petty issues, or one incident of inappropriate behavior or misconduct, are usually not serious enough to warrant dismissal. In these instances, corrective action may be more appropriate.

It is important for organizations to ensure that performance/behaviour problems and serious incidents are well documented. For disciplinary issues, employers need to keep file copies of the disciplinary letters given to the employee. In the case of serious incidents which require prompt action, employers will need to have a record of statements by key participants and witnesses in the incident, as well as reports of any investigation held.

Simply said, it is important to give your employees the chance to improve their performance and/or behaviour. A series of well applied disciplinary steps gives them the chance to fix their performance/behaviour problems and continue to be valuable assets to your organization.

By Yosie Saint-Cyr, Editor at HRinfodesk

Published on HRinfodesk---Canadian Payroll and Employment Law

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