Discipline in the Workplace

What do you do when one of your employees is constantly messing up? What should your response be to that off-colour joke? What are your options for addressing the poor performance of that one employee?

In the workplace, most common employee problems arise from incompetence or misconduct. The good news is, neither of these is likely intentional! But what are your options for fairly and effectively disciplining the offending employee and remedying the situation?

Punitive Discipline is Unacceptable

While employers have a reasonable right to manage their workplace, discipline should never be punitive. That is, you should not punish an employee for their wrongdoing or incompetence. You should not take away privileges or incentives, require an employee to work extra hours or unfavourable shifts. You cannot reduce their pay or hours of work. You can’t withhold pay or humiliate the employee. Taking any of these actions may result in a constructive dismissal.

Instead, workplace discipline should be corrective and progressive.

Corrective Discipline

Most employees want to do right by their employers. They want to meet the expectations of their position and excel at their job. It is unlikely that an employee is messing up or misbehaving on purpose.

In many cases, an employee’s failure to meet expectation arises from simple ignorance or incompetence. This might not sound encouraging on the face of it. However, both ignorance and incompetence can often be easily remedied by clarifying expectations of performance and behaviour. The problem could be as simple as the employee not knowing how to use a program or being unaware of a procedure.

When correcting an employee’s behaviour or performance, communication is key. You need to clarify expectations, offer clear direction, training and support for improvement to help them confidently meet these expectations and give them a fair chance to improve their skill or behaviour.

In short, tell your employee what is wrong, what is expected and how it can be corrected.

Progressive Discipline

Progressive discipline gives your employee the chance to improve. In the case of an employee being unaware of expectations or unable to meet them, progressive discipline gives them the opportunity to keep their job, productively improve, and keep your organization running.

Change wont necessarily happen overnight. It can take time to learn new skills or behaviours. You should therefore also describe a reasonable timeline and deadline for improvements.

Progressive discipline usually starts with a verbal warning, progresses to a written warning, then a suspension and finally, as a last resort, termination. From the beginning, you should explain the consequences of a failure to improve on the part of the employee.

Documentation, Policies and Procedures

A key component of implementing any progressive performance management in the workplace is to document the process. You should keep a detailed written record of any meetings, warnings, training sessions or performance reviews. You should start by recording the misbehaviour or poor performance as soon as it starts so that you can clearly point to the frequency and severity of the infractions. Detailing your performance reviews will make it easier for you to see your employee’s progress (or lack thereof) and protect yourself from accusations of discriminations by having clear evidence to justify your actions.

You should also have clear policies and procedures that set out expectations of performance and behaviour. These policies and procedures should also explain your process for progressive discipline and performance reviews. They should detail disciplinary processes and outcomes. This way, your employees will know from the start what is expected of them and how their performance will be addressed should it fall short of workplace standards.

Policies and procedures hold everyone accountable. They ensure all employees you’re your expectations and confirm your fair and consistent treatment in addressing any problems should they arise.

KCY at LAW Can Help

Corrective and progressive discipline are practical ways to solve employee workplace problems. You don’t want to throw the baby out with the bathwater so to speak. It can be costly to fire an employee and solicit, hire, train and integrate someone new. KCY at LAW can help you design effected performance management policies for your workplace and consult with you on your workplace discipline strategy. To book your consultation, call 905-639-0999.

Leaves of Absence – Emergencies, Health & Bereavement

In a previous post we introduced you to the leaves of absence available to Ontario workers to help them cope with various life events from birth to death. This week we will jump right in and give you an overview of four types of leave employees can take when faced with serious medical emergencies in their immediate family.

Leaves of Absence: Who is ‘Family’?

Families come in many shapes and sizes and the ESA recognizes this in its legislation regarding leaves of absence. Family, as it relates to the leaves of absence we are about to discuss, is a fairly broad term that includes most close relatives (by birth, marriage or adoption).

As it relates to Personal Emergency, Family Medical, and Family Caregiver leaves of absence, the term ‘family’ may refer to:

  • The employee’s spouse (married or unmarried)
  • The employee’s brother or sister (including step-siblings)
  • The employee or their spouse’s parent, (including step- and foster-parent)
  • The employee or their spouse’s child, (including step- or foster-child)
  • The employee or their spouse’s grandparent or step-grandparent
  • The employee’s child’s spouse (son- or daughter-in-law)
  • The employee or their spouse’s grandchild or step-grandchild
  • A relative of the employee dependent on the employee for care or assistance

Family Medical leave also includes:

  • The employee’s brother-in-law, step-brother-in-law, sister-in-law and step-sister-in-law
  • The employee’s spouse’s son- and daughter-in-law
  • The employee or their spouse’s aunt, uncle, niece and nephew
  • Anyone who considers the employee to be like a family member

Types of Leaves of Absence

Now that we know the people for whom you are entitled to take these various leaves of absence, let’s take a look at five types of leave and what they entail. Family caregiver, family medical, critically ill child care, personal emergency and crime-related leaves have a degree of overlap and you can be entitled to more than one of these leaves for the same event.

Personal Emergency Leave
This leave is intended to address a personal illness, injury or medical emergency. You can also take this leave of absence in the case of the death, illness, injury or medical emergency of a family member (see above). Under this leave, you are entitled to take up to 10 days off in every 12-month period. These days do not need to be consecutive but even a half day off will count as a full day of leave. Importantly, this leave is only accessible to Ontarians employed by a company or business with over 50 employees.

Family Caregiver Leave
This leave is to enable you to care for a family member with a serious medical condition for up to eight weeks in a twelve-month period. As with a personal emergency leave, these eight weeks do not need to be taken consecutively. However, taking any number of days off in a week for this leave will count as one week of leave.

Taking a family caregiver leave requires a certificate from a medical professional (i.e. physician, registered nurse or psychologist) stating that your family member has a serious medical condition though it does not need to state what said condition is. You can find the necessary certificate for your physician.

Leaves of Absence for Emergencies, Health Problems & Bereavement

Family Medical Leave
This leave is intended to allow you to care for a family member with a serious medical condition and a significant risk of dying within six months. You are entitled to up to eight weeks in a half-year (26-week) period for this leave. Again, these weeks do not need to be consecutive and, as with the other leaves of absence, taking just one day off in a week counts as an entire week of leave. This leave also requires a certificate from a physician, registered nurse or psychologist stating that the family member has a serious medical condition and a risk of dying within the next 26 weeks.

Critically Ill Child Care Leave
This leave is for parents whose child’s health has significantly changed for the worse and whose life is at risk because of illness or injury. The child may be the employee’s biological, adopted, step or foster child but must be under the age of 18 to take this specific leave.

This leave can last up to 37 weeks in a one year (52 week) period. These weeks do not need to be taken consecutively and this leave can be extended for another 37 weeks. This leave requires a certificate that states that your child is critically ill, requires parental care and sets out the period of time for this care.

Crime-Related Child Death or Disappearance Leave
This leave is for employees facing the devastating tragedy of their child dying or disappearing under criminal circumstances. For an employee to qualify for this leave they must have been with their current employer for at least six months prior to the tragedy. Under this leave you are entitled to 104 weeks (two years) for the death of your child or 52 weeks (one year) for their disappearance.

Leave of Absence Legal Experts

If your work position has been negatively impacted by a leave of absence, KCY at LAW has the expertise to ensure that your rights are protected. Call to book a consultation on (905) 639-0999 or reach us online for more info.

Employee Options to Changes of Employment Terms

When things change in a company or organization – perhaps because of growth or a change of priorities – there may also be a need for changes in staffing and employee responsibilities.

For example, an employee working in a marketing department who was hired to produce copy and content for social media may suddenly be needed to contribute to the management of third-party events or take on some graphic design projects because the organization can no longer afford an in-house graphic designer.

As an employee, when you are faced with new or changing job duties, you may be excited to try your hand at something new. You may feel exhilarated by the prospect of a shift in your daily responsibilities. Or perhaps you are not so enthused to take on duties that were previously outside the terms of your employment contract. Either way, you may be wondering about your rights when your employer wishes to change your employment duties.

Employee options to changes of employment duties

The 2008 case of Wronko v Western Inventory Services Ltd. set out the options available to employees who are told of changes to their employment. Upon being given notice of a change to their employment relationship or duties, employees have the following options:

  1. Accept the changes.
  2. Reject the changes and continue working according to the original terms of their employment (this may lead to termination).
  3. Reject the changes and sue for constructive dismissal should the employer go ahead with the changes anyways.

Fundamental Changes and Constructive Dismissal

Your options as an employee will partly depend on how your employer handles making changes to your contract and/or duties. If the changes are fundamental and made unilaterally – without your input or consent – you may be able to sue for constructive dismissal. A fundamental change typically involves significant changes to aspects of your job such as salary, hours or place of work, seniority, roles or responsibilities.

Fortunately, many employers have both the courtesy and basic employment law knowledge not to make such sweeping unilateral changes to their workers’ employment.

Takeaway for Employees

If you have been presented with significant, undesired changes to the nature of your work or employment: do not despair. You do not necessarily have to accept these changes. Before taking any action, talk to an employment lawyer. They can work with you to understand your situation and counsel you on your rights and legal options.

KCY at LAW is a well-respected employment law team focused on getting our clients the results they want and deserve.

Call us today to book your consultation at 905-639-0999 or connect with us online by filling out a consultation request form.