Windsor-Essex Labour Lawyers Advising Employers on Employee Discipline & Performance

Having an appropriate employee discipline and performance process is critical in all workplaces, including those that fall under a union. Proper discipline and performance evaluation ensures issues are identified promptly and employees are given a fair opportunity to address management’s concerns without being subject to undue discipline. When discipline is required, an unbiased, progressive discipline policy facilitates the correction of ongoing issues and helps protect the employer against liability if the employee is terminated.

The labour law group at Willis Business Law is highly knowledgeable about employee discipline and performance management within unionized workplaces. The firm proactively helps employers avoid future disputes by creating robust policies that uphold the collective agreement requirements. When a conflict has already arisen, and labour action is on the horizon, Willis Business Law advocates for employers of any size and represents their rights before provincial and federal labour tribunals.

Employee Discipline & Performance Management – A Glossary of Terms

Implementing an effective employee discipline and performance management strategy requires understanding many legal, human resource, and operational issues.

Condonation (of Employee Misconduct or Performance Issues)

Employers must take care not to even inadvertently condone an employee’s misconduct or performance issues. If the employer chooses not to address issues, implement performance management, or start disciplinary proceedings (as the case may be) in a timely manner, they may be seen to have condoned the employee’s actions. This can create liability and complications if the employer later uses the employee’s conduct as grounds for termination.

Incompetence

An employee is considered incompetent if they do not have the skills or ability to adequately perform their job (as opposed to an employee who commits wrongdoing or exhibits some misconduct on the job).

Labour laws, arbitration decisions, and collective agreements will usually require an incompetent worker to be given a fair opportunity to improve their work performance. The employee may need additional training, supervision, mentorship, or guidance as they adjust to their job (or any new tasks added to their role).

Once extra support has been provided, employees should be given a reasonable amount of time to improve their job performance. If they continue to struggle, progressive discipline may begin (i.e. through written warnings and expectations of what will occur if they do not improve). Performance reviews should occur regularly, and if the problems are not resolved, the employee may face demotion, reassignment of duties, or termination.

Misconduct

Employee misconduct occurs when the employee breaches workplace rules, affecting the workplace’s efficiency, safety, or overall well-being. Dealing with employee misconduct involves a highly emotionally charged situation and will depend on the circumstances of each case.

If the employee does not have a history of misconduct and/or it was minor in nature, the employer may be able to manage the problem through progressive discipline. Expectations and potential consequences should be clearly communicated to the employee at all stages. If the misconduct continues or was sufficiently severe to begin with, the employer may choose to terminate the employee outright. However, employers should always consult with a knowledgeable labour lawyer before terminating an employee to ensure they do not face potential liability under the collective agreement or the applicable labour laws.

Performance Management

Performance management is the most efficient and effective way of addressing poor job performance. The employer should raise the performance issue with the employee as soon as possible and immediately begin working with the employee to identify ways to remedy the problem. Performance management is not disciplinary; instead, it attempts to support the employee’s success through training and development, proper supervision, and giving the employee a reasonable opportunity to improve.

An employee who does not immediately improve after performance management is implemented may be subject to written warnings about potential consequences if performance continues to suffer. Employers must carefully document all efforts to assist the employee and improve their output, both to inform future attempts to support the employee and as due diligence in case of a grievance.

If the employee continues to struggle with their performance, either through incompetence or misconduct, they may face progressive discipline or termination.

Progressive Discipline

Employees who have failed to meet performance expectations (particularly after engaging in performance management) or have engaged in misconduct may be subject to disciplinary action by the employer. Progressive discipline is the best method for employers to mitigate their risk against grievances or unfair dismissal complaints.

Most disciplinary measures will proceed through progressive discipline, although severe misconduct may be grounds for immediate dismissal. In all other cases, the discipline progresses over time – often from verbal to written warnings, to possible suspension, and finally, to dismissal.

At every step of the progressive discipline process, the employer must carefully document all discussions, correspondence, and directions given to the employee. Expectations and consequences must be clearly communicated at each phase to ensure the employee has received fair notice of what they must achieve to retain their job.

Contact Willis Business Law in Windsor-Essex County for Pragmatic Employee Discipline & Performance Solutions

Having a qualified labour lawyer create and implement discipline and worker performance strategies helps protect employers from allegations of unfair labour practices, grievances, and other labour actions. The skilled labour lawyers of Willis Business Law offer comprehensive, tailored solutions for progressive discipline and performance management. By working closely with a member of the firm’s labour law group, employers and businesses can minimize their vulnerabilities and foster a healthy, thriving workforce.

Willis Business Law is located in the heart of Windsor’s financial district, overlooking the Detroit Riverfront. Equipped with a mastery of business law, employment law, labour law, and mediation experience, the firm proudly represents clients across Windsor-Essex County and the surrounding communities, including Amherstburg, Essex, Kingsville, Lakeshore, LaSalle, Leamington, Pelee Island, Tecumseh, Chatham-Kent, and Sarnia. To schedule a consultation with a member of our knowledgeable labour law team, please contact us by phone at 519-945-5470 or online.