Discipline in the workplace is the means by which supervisory personnel correct behavioural deficiencies and ensure adherence to established company rules. The purpose of discipline is correct behaviour. It is not designed to punish or embarrass an employee.
Often, a positive approach may solve the problem without having to discipline. However, if unacceptable behaviour is a persistent problem or if the employee is involved in a misconduct that cannot be tolerated, management may use discipline to correct the behaviour.
In general, discipline should be restricted to the issuing of letters of warning, letters of suspensions, or actual termination. Employers should refrain from “disciplining” employees by such methods as altering work schedules, assigning an employee to do unpleasant work, or denying vacation requests.
Examples of misconduct which could result in discipline:
Of course, discipline may be required for a number of other misconducts. The question that needs to be asked is if the Employer has “just cause” to impose a form of discipline.
In reviewing whether or not management was correct in its choice to discipline, arbitrators have looked at a number of factors. These factors must be taken into account by management when deciding to use discipline:
1. Did the employee clearly understand the rule or policy that was violated?
For example, were the work rules or policy provided to the employee prior to the violation. It is management responsibility to prove that the employee knew the rule or policy.
2. Was the rule or policy consistently and fairly enforced by management?
For example, did management have a history of ignoring the departmental policy on wearing safety equipment, but singled out an employee for discipline anyway.
3. Did the employee know that violating the rule or policy could lead to discipline?
4. The seriousness of the offense in terms of violating company rules of conduct or company obligations.
For example, being a few minutes late for a shift would not be viewed as being as serious an offense as striking another employee or stealing University property.
5. The long service of the employee.
6. The previous good (or bad) work record of the employee.
Was the employee pushed into acting rudely or violently as a result of management or a customer’s actions. This is a very common defense for employees involved in insubordination.
8. Did the employee admit to the misconduct and apologize for their behavior?
Arbitrators will often rule harshly against employees who are deceptive during an investigation and who show no remorse for their actions.
This list is not exhaustive, but it does include some of the more important factors that should be reviewed prior to issuing discipline.
Even though the process may occur over a long period of time and may include a number of events, the process has two stages:
1. The investigation stage.
This is perhaps the most important part of the discipline process. Discipline cases are often won or lost based upon the amount of effort put into the investigation. At this stage the manager should be gathering facts and evidence to confirm what took place. This evidence might include witness statements, a report from a private investigator, documentary evidence, interviewing witnesses to the incident, and most important of all, interviewing the employee involved in the misconduct.
The employee interview is the key to the investigation, and it is should play a major in role in management’s decision to issue discipline. Even when there is overwhelming evidence of an employee’s guilt, it is still essential to interview the employee. An employee involved in a misconduct should be provided an opportunity to explain themselves.
2. The discipline stage.
Once management has heard the employee’s explanation in the interview, verified the facts and gathered all the evidence, the decision to discipline can be made. Ideally, the decision should be made after discussions with other people in management, and talking about the specifics of the case with the Human Resources Department. The basis for discipline should also take into account, the factors discussed in the section on “just cause”, i.e., the employee’s past record, the severity of the incident, was the employee provoked. Ideally, discipline will not be issued “verbally” to an employee. Discipline should be issued in writing to an employee and only after the investigation and interviews have taken place.
The main purpose of an investigation is to determine to the best of a managers’ ability the facts surrounding a misconduct in the workplace. As a result, investigations by their very nature should be conducted in a fair and objective manner. The need for objectivity and fairness is further reinforced by the fact that in a unionized workplace, employees have the ability to grieve discipline that is issued to them. Any discipline that is grieved, could eventually find itself before an arbitrator who will examine in detail the strength of the evidence and the fairness of the discipline.
Points to consider when conducting an investigation:
1. Conduct an investigation with another member of Management.
Where possible, two members of management should work together when conducting an investigation that could result in discipline. Ideally, these two managers will interview all witnesses together. Having two managers conduct an investigation provides the opportunity for Management to call two witnesses to testify to events. It also provides for better note taking and documentation of questions and answers during interviews. Consideration should be given to whether or not an investigating manager would make a good witness in a future hearing. Some individuals do not make good witnesses. Consideration should also be given as to whether or not a manager will be available six months to a year later to testify in any future hearing. A manager who will be leaving the University is not a good choice as an investigator.
2. Union representation during an investigation
There is a requirement for a shop steward to be present when interviewing a unionized employee where there is a reasonable belief that the employee may be disciplined. There is no requirement for a steward to be present if Management wants to interview an employee who was only a witness to a misconduct or who is providing a complaint regarding another employee or member of management.
3. Talk to as many witnesses as possible when conducting an investigation
If it has been determined that there are witnesses to a misconduct, Management should meet with these witnesses in order to determine the best possible picture of the incident that has occurred. These meetings should be conducted formally, if possible, and notes taken of the witnesses’ statements and answers to questions. If possible, request a written statement from any witnesses. While a written statement is often helpful, it does not replace the need to sit down and formally interview a witness.
4. Investigate the paper trail
There is often a substantial amount of “documentary” evidence that can be used to support evidence of a misconduct. Examples of this include financial records, time cards, phone records (the University can obtain a record of every telephone call made on campus) computer records, e-mails, policy documents, performance appraisals etc.
When conducting an investigation, the security of this evidence must always be considered. There is always the possibility of this type of evidence being destroyed or altered if news of an investigation becomes known.
During an investigation, the employee’s personal file should also be reviewed to determine if the employee has in fact been disciplined previously. If the employee has been previously disciplined, this should be mentioned in any subsequent discipline letter.
5. Seek outside help to investigate evidence of misconduct
At times it may not be possible for a manager to investigate into a misconduct without the help of an expert. In fact many serious and complex cases of misconduct can only be properly investigated with the assistance of private investigators, forensic auditors, computer specialists and the like. This can be especially true with misconduct involving WCB or sick leave abuse, complex cases involving fraud or theft, and the misuse of computer technology. Choosing to hire an outside party to investigate into a misconduct can be an effective tool for providing strong evidence of misconduct. It is suggested that you discuss the use of expert investigators with H.R. prior to bringing them into an investigation.
An investigative interview is the most valuable tool at Management’s disposal for gathering information about a misconduct in the workplace. Some of the more important reasons for conducting interviews are:
Except in unusual circumstances, investigative interviews should always take place before discipline is issued. Discipline should never be issued during the interview process. Often employees or union representatives will ask in the interview questions like: “what discipline will be issued here?” or “where is this going?”. These types of questions should be answered by saying that Management is still conducting an investigation and that any discipline will be determined when the investigation is complete. Managers should never engage in discussion on potential discipline during investigations. The interview process is for gathering information, not for issuing discipline. Discipline should always come later and in writing.
The interview, if conducted successfully, should help to establish whether or not an employee did in fact take part in a misconduct and the reasons why the employee did the misconduct. By conducting a thorough interview, it also makes it difficult for the employee or witnesses to “change their story” at a later date.
It is recommended that the supervisor type out the questions to be asked prior to having an interview. The questions should focus on the “who, what, where, when, why, and how” of the misconduct. In a typical investigation, all of the witnesses to the event will be interviewed first. Interviews with witnesses should be treated formally and good notes taken of their statements and answers to management questions. Management should also be gathering any “documentary” evidence which help might determine events. After speaking to witnesses and reviewing all the available evidence, the “suspect” employee should then be interviewed.
When interviewing employees who are suspected in a misconduct it is important that all the evidence that Management has gathered during the investigation stage is raised with the employee in the interview. An employee should leave the interview knowing what the specific allegations against them are. Management should not “hold back” evidence that it has against the employee. The questions asked of the employee should be as specific as possible, ideally with dates and approximate times that the event(s) occurred.
1. An employee who refuses to provide an answer to a question
The purpose of most interviews is to gather information and to provide the employee an opportunity to explain their actions. Unfortunately, some employees will refuse to cooperate in interviews or refuse to answer questions. Ironically, from a legal perspective this actually hurts the employee a great deal. Arbitrators have confirmed that Management has a right to expect employees to be truthful and honest when facts are put to them in an interview. Refusal to answer a question allows the Employer to draw an “adverse inference”. The inference being that the employee was in fact responsible for the misconduct. In these cases there is no point arguing with the employee. Management should politely ask the question again. If there is still a refusal or other disruptive tactics, Management should simply state to the employee that they are refusing to answer the question and that this will be recorded in the notes. Management should then move on to the next question even if the response is still the same refusal to respond or cooperate. The important point is that Management asked the question and provided the employee a chance to respond. The employees’ silence will be very damaging in any future arbitration.
2. The employee continually interrupts questioning by raising issues unrelated to the investigation
An employee may disrupt an interview by wanting to discuss issues unrelated to the interview questions. A typical example is an employee who responds to a specific question on his/her conduct, by raising completely unrelated issues such “the bad morale in the department”, “harassment by management” “favouritism on promotions ” etc. This tactic is very common in an interview. It is done in the hope that management will move off the original question on the specific behaviour, i.e. “did you swear at your supervisor on Monday at 9:00 a.m?” and enter into a fruitless discussion on “harassment”. This tactic is very similar to refusing to answer questions. Never engage in these discussions during an interview. This is not a union- management meeting. Stick to asking the original questions. The best response is to state, “that the purpose of this meeting is to ask specific questions regarding his/her behaviour, after the specific interview questions are completed, an opportunity will be provided to discuss the employee’s other concerns.”
If the behaviour continues, treat it in the same way as a refusal to answer a question.
3. The Union or employee wishes to caucus during the interview
In general, there is nothing wrong with a caucus during an interview. Many Union representatives will take this opportunity to explain to the employee the tremendous danger of being deceptive or dishonest in the interview. In fact, many employees have decided to “come clean” after a caucus session with their union representative and admitted to their involvement in a misconduct. Employee’s who ask to caucus once or twice should be provided an opportunity.
Further caucus sessions may in fact become a tactic to disrupt an interview. Any such tactic should be protested strongly in the interview and recorded in the notes. Once again, this type of tactic actually hurts the employee if the case ever goes to arbitration. An employee who must repeatedly caucus after being asked simple and direct questions may be viewed with skepticism by an arbitrator.
Human Resources should also be informed immediately of any examples of disruptive caucus sessions in interviews.
4. The employee asks to resign during the interview
When faced with overwhelming evidence and very difficult questions, an employee or Union representative may raise the subject of resignation instead of answering the questions. A resignation under these circumstances is often an emotional reaction and can just as quickly change later on. The interview should not be stopped to discuss offers of resignation. Under these circumstances, it is always best to tell the employee that any decision to resign will have to be made after the investigation process and that for now management will continue with the interview questions.
5. The Union representative offers to answer interview questions for the employee
This is unacceptable practice that should not be tolerated during investigative interviews. Union representatives are perfectly entitled to clarify questions, but they should never be allowed to answer a question for an employee.
One of the main purposes of investigation interviews is to provide an employee an opportunity to explain their actions to management. Management must then gauge numerous factors such as an employee’s credibility, any remorse or apology an employee may offer for their actions, whether or not the employee was aware of the policy or rule that was broken, etc. This is not possible if an employee simply refuses to speak to management. For example, how does Management judge credibility or accept an apology through a Union representative?
Any interview that begins with a Union representative stating that they will be “answering questions for the employee” should be immediately halted. The employee should then be notified that failing to answer a question on their own will be treated as a refusal to answer questions. The employee should than be notified that Management will draw an “adverse inference’ for their refusal to answer questions on their own.
If the behaviour continues Management should end the interview. Human Resources should then be notified immediately. Fortunately, this practice is not very common with larger unions and normally only occurs with an inexperienced union steward.
After the interview(s) is completed and management has gathered all available evidence, the decision to discipline can then be made. The decision to discipline should be based upon a number of factors. From Management’s perspective it needs to be determined whether or not the employee’s behaviour in the workplace needs to be corrected or stopped. If so, discipline is clearly an option to consider. That said, there may be other options available, especially if there are other factors that may have played a role in the misconduct i.e. mental health issues or substance abuse. In these circumstances, it is very important to discuss these issues with Human Resources before making a decision.
Another important factor that needs to be examined prior to issuing any discipline is the quality of the evidence. Put simply, Management needs to be able to prove its case for discipline. The accepted standard for proving guilt in labour law is based upon a “balance of probabilities” (this is a lower standard than “beyond a reasonable doubt” which is used in criminal law). If on a “balance of probabilities” Management feels that the employee has been involved in a misconduct, than discipline is certainly an option. If the evidence is weak management should not pursue discipline.
Management should also take into consideration the eight principles raised in “Just Cause and its affect on Discipline” section above. These principles are the ones that arbitrators will look at when reviewing a manager’s discipline. For example, management might reduce the discipline imposed if the employee had a ten year clean record and had shown remorse and apologized for their actions.
Another factor to look at is the “Principle of Progressive Discipline”. Under this principle, discipline is administered in progressive stages. Progressive discipline means that management first tries to resolve the problem without imposing a severe penalty such as a long suspension or termination. However, if the employee’s behaviour is not corrected, then the penalty is increased to the final step of actual termination. For example, an employee who appeared late for work a few times would first receive a letter or warning rather than a suspension. It should also be noted that some misconducts are so severe that progressive discipline need not be followed. Serious misconducts such as theft, fighting, conducting illegal activity on the work site, etc, can lead to termination on the first offense.
Prior to issuing discipline it is important to take all of the above factors into consideration. The Human Resources department can be very helpful in this process and should be consulted before discipline is issued.
The following sequence of events summarizes the typical steps taken once a misconduct occurs the workplace.