Are you concerned with one of your employee’s productivity? Does their performance leave something to be desired?
While you have every right as an employer to terminate an ‘unsatisfactory’ employee without cause – as long as you provide the appropriate notice – doing so may not be the best option for your workplace’s overall productivity.
Dismissing one employee and hiring another requires an investment of time, money, training and resources that might otherwise be saved if you instead choose to address an employee’s unsatisfactory performance with a program of progressive discipline.
What is progressive discipline?
As its name suggests, progressive discipline involves confronting and deterring poor work performance with increasingly severe consequences.
However, the goal of progressive discipline is not to punish your employee. Rather, it is to remedy poor performance and help your employee be and do their best. A progressive discipline policy gives a struggling or idle employee the opportunity to improve and keep their job.
Most employees want to be successful at their job and, with the right framework and support, can be. The need for remedial action usually arises because an employee is unaware of expectations or lacks the skills or knowledge to meet them.
Regardless of the reason for your employee’s poor performance, you should only resort to termination as a last resort after you have attempted a program of progressive discipline such as the one outlined below.
A Step-by-Step Guide to Progressive Discipline
1. Start Documenting
In the unfortunate event that your progressive discipline undertakings do not result in the necessary improvements and you decide to terminate your employee for cause, you will want to have accurate and comprehensive documentation of all the steps you took to help your employee improve and the outcome of these progressive discipline measures.
The way you apply progressive discipline before terminating an employee for cause can have significant consequences for your business should your employee file a complaint for unjust dismissal.
You should therefore keep records of all incidents, warnings, training sessions and any other performance-related interactions. A record of cumulative poor behaviour will be a strong supporting argument for just cause termination in the eyes of the law.
2. Act Early
Address poor performance before it becomes a habit. When you see areas for improvement or intervention, take the opportunity to let the employee in question know as soon as possible.
If an employee has been working a certain way for a long time without complaint, they may simply assume that what they are doing is acceptable. What’s more, if you allow unacceptable performance to continue for too long, you may be seen as condoning it. In this case, you may not be able to use the offending performance as just cause for future termination.
3. Verbally Confront Your Employee
Talk to your employee face to face. Let them know that you are dissatisfied with their performance. Be gracious and assume that their intention is not to be bad at their job. The vast majority of employees want to do right by their employer. So give them the opportunity to explain themselves. Getting to the bottom of an employee’s poor performance will help you understand any underlying issues – such as lack of training or a need for accommodation – and empower you and your employee to move forward productively.
4. Clarify Expectations and Consequences
Make sure that your employee understands what is expected of them and why. Clarify what the consequences will be if they fail to meet these expectations. These consequences may be further reprimands, suspension or even termination. This can be done verbally or in writing depending on the complexity of the situation.
Set a deadline for the employee’s improvement so that they know the timeframe in which they are working.
5. Offer Direction and Support
Sometimes, an employee just won’t know where to start. Give your employee adequate direction about how they can improve and constructive feedback on their progress. Set goals so that they know what they are aspiring to and how long they have to (re)learn the ropes.
You may also need to provide your employee with additional training. Their poor performance may be the simple result of honest ignorance or incompetence.
6. Give Your Employee a Fair Chance to Improve
Be fair. Know that some changes and improvements will take time. Give your employee reasonable time and opportunity to adjust or improve their performance.
7. Evaluate the Situation
Have things improved? Does your employee seem to be making a genuine effort to learn, change and do better? If yes: Great! Problem solved! Your progressive discipline was effective.
If things do not improve, do not improve fast enough, or your employee seems reticent to improve at all, it’s time to proceed to the next disciplinary step.
8. Issue a Written Warning
Give your employee a written warning that clearly states how they are falling short of expectations. The warning should also detail what will happen if the employee fails to meet these expectations within the prescribed timeframe. Give a signed and dated copy of this letter to your employee and keep one to put in their employment file for your records.
9. Apply Further Progressive Discipline
Depending on the nature of the poor performance, your employee’s efforts to change and other relevant factors, you may need to apply further discipline. You may decide to put your employee on probation, suspending them without pay, reassigning their work or even give them a demotion. However, exercise great care before unilaterally changing the nature of your employee’s work or you may unintentionally instigate a constructive dismissal.
If, after taking all the above disciplinary measures, your employee continues to fall short of your expectations, it may be time terminate them. At this point, if you decide to terminate them for cause (meaning they will not receive any termination notice or pay in lieu thereof) you will likely have the necessary cumulative cause and supporting documentation to defend your decision should your employee sue for wrongful dismissal.
Benefits of progressive discipline
Progressive discipline may seem like a great break for employees, but practicing progressive discipline has many benefits beyond second chances.
First, it provides a great learning opportunity for employers. Getting an employee’s feedback can help uncover shortcomings in training programs or needs for clarification in workplace policies or expectations that can benefit all future employees and therefore your workplace’s overall productivity and success.
Furthermore, in the event that you decide to terminate an employee for cause, having a record of the steps you took to remedy the situation and give your employee opportunities to improve will provide the supporting evidence you need to justify a for cause dismissal in court.
Lastly, progressive discipline makes for an overall healthy work environment. By being open and supportive, by demonstrating grace and showing your belief in and care for your employees, you will inspire confidence and foster a positive work environment for all.
The employment law team at KCY at LAW has the expertise to advise and assist both employers and employees in all matters concerning discipline in the workplace. To book your consultation, call 905-639-0999 or fill out our online form here.