In the event that an employee’s conduct is so egregious and performance management is not resulting in a change in behavior, disciplinary measures and/or termination must be considered. As in all employment matters, the disciplinary process must be fair, constructive, and consistent. The objective process should be focused on resolving and addressing unacceptable conduct or performance. Similarly, a termination whether for cause or not for cause, must be informed, well documented and respectful. The objective of the process must be focused on supporting the employee in their exit from the organization in a fair, clear and transparent manner.
The following section outlines the considerations an MSA executive should make when preparing for and executing discipline. We discuss a progressive disciplinary process with five (5) different stages and/or levels of consequences to reflect differences in the nature of the conduct or performance issue. Depending on the severity of the misconduct or the frequency of its occurrence, the progressive disciplinary process can start at any of its stages.
In this section, we also discuss the considerations and steps for executing a termination process. Terminations can be done for cause or not for cause. A for-cause termination is a termination that is the result of a severe error in actions or judgement, such as a violation of the company code of conduct or ethics policy, a breach of contract, violence or threatened violence, stealing, etc. A not-for-cause termination is when the termination is being done as a result of no fault of the employee but due to a lack of fit between the employee and the employer, change in need of the organization, end of funding, etc.
Disciplines and terminations can be complex and difficult to navigate. If you have questions or need support, it is recommended that you reach out to an expert in human resources who can support you and your employees in these matters. By using the tools and following the guidelines provided, you will know of the key considerations and best practices regarding these matters and will be better informed to execute a thoughtful, fair and equitable process.
If you have additional questions or concerns, please consult your Engagement Partner.
ROLES & RESPONSIBILITIES
- Advise the employee of the unacceptable conduct and/or performance and give the employee opportunity to explain their actions before any disciplinary action is taken.
- Inform the Board of Directors, as applicable, before any disciplinary action is taken.
- Investigate misconduct and document findings in writing, preferably by a second person who is taking notes. Notes must include the date, the parties present, and what was said and asked.
- Ensure all disciplinary conversations are held confidentially and objectively documented.
- Ensure all letters or documents related to the disciplinary process are placed in the employee’s personnel file.
- Ensure any terminations are done in accordance with the Employment Standards Act.
- Ensure all letters or documents related to the disciplinary process are placed in the employee’s personnel file.
- Be aware of their job expectations and responsibilities.
- Seek the training and/or assistance they need to be successful in their role.
- Identify gaps in their understanding.
- Hear and respond to feedback provided by management.
- Work to create a positive and open work environment.
The employer has a responsibility to inform employees of unsatisfactory performance in a timely and open manner and, where appropriate, to provide employees an opportunity to correct unsatisfactory performance. Except for very serious offenses resulting in dismissal for just cause, the employer may support a progressive discipline approach.
Progressive discipline intends to raise the employee’s awareness of the problem and the need to change based on an escalation of consequences for failure to comply. These escalating consequences may include the following five (5) steps:
- Step 1: Verbal Warning
- Step 2: Written Warning
- Step 3: Performance Improvement Plan (PIP)
- Step 4: Suspension
- Step 5: Termination
Depending on the nature of the misconduct and other factors, the ‘step’ the employer chooses to initiate may vary.
Verbal warnings are used for minor unacceptable conduct and/or performance.
- Discuss the unacceptable conduct and/or performance with the employee, so that they understand the expected standards of performance, reason for warning, any remedial action they are required to take as a result of their actions, and consequences if unacceptable conduct and/or performance continues.
- Objectively document the discussion that occurred and place the notes in the employee’s personnel file.
- Follow-up any verbal warning with an email to record what was discussed and the need for a change in behavior. Use the email chain to document the discussion and save in the employee’s file.
Written warnings are used for repeat of minor unacceptable conduct and/or performance after verbal warning, or for conduct and/or performance which is more serious in nature.
- Complete a Written Warning Letter outlining the details of the infraction. Describe the unacceptable conduct and/or performance to ensure the employee understands the expected standards of performance, reason for warning, any remedial action they are required to take as a result of their actions, and consequences if unacceptable conduct and/or performance continues.
- Review the content of the Written Warning Letter with the employee.
- Objectively document the discussion that occurred and save the notes, along with a copy of the written warning, in the employee’s personnel file.
- Have a neutral third-party present at the meeting when presenting an employee with any kind of disciplinary action.
- Sometimes to accompany a written warning, workplaces will create a performance improvement plan for the employee. See the Performance Improvement Plans section.
- In rare circumstances, suspension may be used during an investigation, especially if the investigation involves a sensitive matter (e.g., an allegation of sexual harassment).
- The employee must be notified of the reason for the suspension and its expected duration. This must be objectively documented and a copy of the notice must be included in the employee’s personnel file.
- Suspension may be a period of paid or unpaid leave. Suspensions during investigations will be paid except in rare circumstances.
- Consult a lawyer and/or human resources professional before proceeding with a possible suspension.
- Seeking legal advice if considering paid or unpaid suspensions and, in particular, if an investigation process is required.
- This means ending employment of the employee. There are a number of factors to keep in mind when terminating an employee for cause or other reasons. The next section outlines important information you need to know when considering the termination of an employee.
DETERMINING DISCIPLINARY REQUIREMENTS
- Consider multiple factors when determining the appropriate ‘step’ to start your progressive discipline.What ‘step’ you start your progressive discipline should depend on several factors including, but not limited to:
- Past record: Is the unacceptable conduct and/or performance consistent or inconsistent with past conduct and/or performance of the employee?
- Length of service: How long has the employee been with the organization?
- Intent: Did the employee act with willfulness or intent, or was the unacceptable conduct and/or performance due to carelessness or inattention?
- Frequency: How many times has the unacceptable conduct and/or performance occurred?
- Timeframe: Has the unacceptable conduct and/or performance occurred frequently in a relatively short period of time?
- Repetition: Has a similar or the same unacceptable conduct and/or performance happened before? How long ago was the previous occurrence? Previous incidents may become less relevant to new discipline as time has passed and the unacceptable conduct and/or performance issues have not reoccurred.
- Seriousness: How serious is the unacceptable conduct and/or performance, and has it had a negative impact on the organization and/or other employees? In cases of very serious misconduct, termination of employment might be the most appropriate course of action even if the employee has a clean disciplinary record.
- Treatment of others: How have other employees been treated for the same or similar unacceptable conduct and/or performance? If the employee or other employees engaged in similar conduct in the past without discipline being imposed, then it may be difficult to justify discipline for the same conduct, in which case the employee might have to be put on notice that the conduct is unacceptable, before more serious discipline can be imposed.
- Provocation: Was the employee provoked by the actions of another individual(s)?
- Knowledge: Was the employee aware that their conduct was unacceptable, or the level of performance expected of them?
- Recognition of error and apology: Has the employee admitted to the unacceptable conduct and/or performance and apologized or made remedies?
- Review all questions and gather facts as they relate to the specific situation. This will help determine the level of disciplinary action required.
PERFORMANCE IMPROVEMENT PLANS
The Performance Improvement Plan (PIP) is an objective and clearly outlined plan created to ensure the employee understands the expectations with regards to conduct and/or performance within their role. It must outline any remedial action they are required to take as a result of their poor conduct and/or performance, as well as the consequences if unacceptable conduct and/or performance continues.
PREPARING A PERFORMANCE IMPROVEMENT PLAN
- The PIP should articulate the following:
- The expectations of the workplace and/or description of the acceptable conduct and/or performance required for success in the role
- The consequences of failing to meet expectations
- How improvement will be measured
- What follow-up meetings and/or progress reports will be required
- The length of time the employee will be under review
- Consider offering appropriate resources or training to the employee to assist in their improvement. Include a description of the recommended training and/or additional resources the workplace will offer and/or require.
- Consider including a place for the employee and manager to sign the document acknowledging receipt and understanding.
MEETING WITH THE EMPLOYEE
- Meet with the employee and review the performance improvement plan in detail, answering any questions.
FOLLOW- UP AND DOCUMENTATION
- Objectively document the discussion that occurred and place a copy of the notes and the PIP in the employee’s personnel file.
- Hold regularly scheduled meetings with the employee to monitor progress against the PIP and provide any necessary support.
TYPES OF TERMINATION
An employer can terminate an employee at any time, for any reason, provided that the reasons are not based on discriminatory grounds as set out by the British Columbia Human Rights Code. Protected characteristics include race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, gender, sexual orientation, age, or because a person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
There are two types of terminations: terminations with cause and terminations without cause.
TERMINATIONS WITHOUT CAUSE
- Termination without cause means ending an employee’s employment not for workplace misconduct. Possible reasons for termination without cause include restructuring, cost-cutting, realignment or poor work performance
- An employee who has been terminated not for cause is entitled to a notice period. A notice period is a length of time from the date on which notice of termination is given to an employee to the date on which employment will terminate. See the Notice Requirements, Working Notice & Severance section.
- Minimum notice requirements are informed by the Employment Standards Act and any applicable contractual notice or severance entitlements that are articulated in company policy or the employee’s employee agreement.
TERMINATIONS WITH CAUSE
- If an employee is terminated with (or “for”) cause, the employee is not entitled to notice of termination.
- Employment may be terminated for cause after other disciplinary measures have been unsuccessful in correcting unacceptable conduct and/or performance, or when a first time incident occurs that is illegal or otherwise very serious in nature. Some examples of conduct or performance that might constitute “with cause” include but are not limited to:
- Intentional harassment
- Instigating a fight on company property
- Consuming or distributing illegal drugs on company property
- Intentional destruction of property
- Willful disobedience and/or failure to comply with safety rules and company policies
- In cases of terminations with cause, the burden of proof for just cause rests with the employer.
- An employee who has been terminated for cause is not entitled to a notice period.
NOTICE REQUIREMENTS, WORKING NOTICE & SEVERANCE
Notice requirements and/or severance entitlements are subject to all applicable statutory and regulatory requirements, including requirements established by the Employment Standards Act. Employers have the option of paying out the employee’s notice period, also known as providing severance, or providing the employee with working notice.
Notice of termination or severance is not appropriate in the following circumstances:
- Employee voluntarily resigned
- Employee is in their probationary period
- Employee retired
- Employee was dismissed for just cause
- Employee was employed for a definite term and the term has expired
- Employee worked on a casual basis doing temporary assignments which they could accept or reject
DETERMINING NOTICE REQUIREMENTS
- Determine an employee’s eligibility for notice or pay in lieu of notice according to the Employments Standards Act, the terms of any employment contract if equal to or greater than the minimum required by the Employments Standards Act, or other relevant legislation.
- Provide the employee with written notice and/or compensation based on their length of service.
- For all matters related to termination (“without cause” or “with cause”) seek advice in advance from a lawyer and/or human resources professional to assess the situation and prepare proper termination documentation.
- Other factors such as the age of the employee and their ability to secure similar work can be used when determining an appropriate notice requirement.While not required as per the Employment Standards Act, these considerations have informed what is considered appropriate in the workplace.A lawyer and/or human resources professional can advice you on what would be an appropriate notice requirement.
- Employers may want to consider providing additional severance pay in exchange for a ‘release’ to ensure that the employee does not later bring a claim against the employer arising from their employment or the cessation of their employment.
- See the Severance & Release section for more information.
Working notice is when an employer requires the employee to work out their notice period.This option is appropriate in circumstances where the employee has been hired for a set term and has a pre-established end date since they were hired.
- Working notice is a reasonable option when the end date for the position is pre-established and all parties are clear on the parameters and expectations of the role.
- Working notice is not an appropriate option in situations where employment is ending for unexpected and unanticipated reasons and the employee may have an emotional reaction to the news. Requiring employees work through their notice period in these conditions often leads to low morale and can have a negative impact on the whole organization.
SEVERANCE & RELEASE
Severance refers to ‘paying out’ the employees notice period entitlement. Often in these cases, employers will provide additional severance pay in addition to the minimum required by the Employment Standards Act.
Release refers to a written document the employee is required to sign outlining the terms in which they will receive additional payment (i.e., severance). In a release may be terms related to confidentiality, etc.
- A lawyer or human resources professional will provide you with an assessment of whether a release would be beneficial and the amount of additional severance pay that would be appropriate
- If you only provide the minimum notice required by the Employment Standards Act, you cannot require the employee to sign a release.
PREPARING FOR TERMINATION
- Proper documentation is critical. Prepare the required document in advance to present at the meeting.
- Prepare and follow the Internal Ending Employment Checklist and Ending Employment Checklist:
- Prepare communications for immediate release to other employees, board and key stakeholders. Exercise caution with internal and external email communications concerning the reason for the employee’s departure. The reasons for an employee’s termination are personal information which must not be shared.
- Prepare a script to guide the termination conversation, ensuring it is clear to the employee that the decision is firm and irrevocable. The content of your message and how you phrase it depends on the reason for termination.
- Determine who in the company will handle reference requests, which should only be one person, preferably a supervisor or someone in Human Resources.
- Establish an interim reporting structure when a senior position is terminated.
- Contact your Engagement Partner for guidance on responding to questions.
- Determine whether your organization is prepared to provide a reference for the employee’s potential future employers.
- Providing a letter of reference which only sets out the employee’s position, duties, and dates of employment and restricts reference requests to the information contained in the letter.
CONDUCTING THE TERMINATION
The following are general suggestions to assist with the termination process:
- Be prepared with the following:
- Two (2) copies of the termination letter confirming the decision and the details of additional severance pay and release (as applicable); one (1) copy in an envelope is for the employee being terminated
- Self-addressed and stamped envelope for return of signed release (as applicable)
- Paycheque or direct deposit information for final pay
- Termination conversation script
- Internal Ending Employment Checklist and Ending Employment Checklist
- Conduct the termination in the employee’s office or a neutral site.
- Have two (2) senior persons present for the termination, one of whom will be the spokesperson.
- Keep the termination meeting as short as possible. Refrain from engaging in any detailed discussion about the reasons for the termination with the employee.
- Request that all company belongings be returned immediately or by a specified date if not readily available. Pre-arrange a time and place to meet as appropriate.
- Provide the employee with a box and invite the employee to gather their belongings immediately or offer to do it for them at a later date and return to them via courier.
- Ensure they leave the building without providing the appearance that they are being forcibly escorted out of the building.
- Ensure employee has a way to get home safely.
Note: The termination process applies to a termination without working notice. If someone is given working notice, they would not be asked to leave immediately, pack up their items, etc.
- Meet at the start/end of the day, when fewer employees are around.
- Meet at the beginning of the week as this provides the employee with the opportunity to seek counsel (lawyer, financial advisor, etc.).
- Do not ask the employee to sign the release immediately. Inform the employee that you do not want them to sign it right away and encourage them to take time to consider the release and seek independent legal advice prior to signing it.
- Use the Internal Ending Employment Checklist and Ending Employment Checklist to guide you and provide the employee clarity about items that must be returned.
- Offer the employee the option to take a taxi (paid for by the employer) if they do not feel they are able to drive.
- Having a list of items that are required to be returned for the employee to use as a reference.
- Immediately make notes about the termination meeting, including the date and time, for future reference in case any litigation ensues.
- Meet with remaining team members to answer “now what?” Share any new reporting structure information and provide reassurance while maintaining confidentiality of the terminated employee and the process.
- Send communications and/or set up meetings as appropriate to notify any other team members, the board and key stakeholders.
- Confirm all final paperwork is prepared and submitted (e.g., Record of Employment (ROE)).
- If you are willing to provide a reference, ensure that the person assigned to give the reference is aware of what they may share with potential employers who request a reference.