Making the effort to modify behaviour

By Ashton Butler, MLT Aikins LLP

Progressive discipline is a straightforward concept that is frequently underutilized or misapplied. Employers often run into problems where they plan to terminate an employee for just cause but realize that they have not properly engaged the progressive discipline process. Failing to engage in progressive discipline can have the further unintended consequence of giving an employee the expectation that the employer has condoned a particular type of behaviour. Accordingly, progressive discipline is an important tool that should remain front of mind for employers and be utilized where appropriate.

In a nutshell, progressive discipline requires that an employer engage in a series of increasingly severe disciplinary steps designed to modify an employee’s behaviour. The underlying principle is one of preventative and corrective action – the intention is that the employee will learn through experience and will face the threat of more serious discipline if their behaviour is not corrected.

Progressive discipline can be beneficial for employers in two regards. Generally speaking, progressive discipline allows an employer to:

Intervene and communicate to an employee that their behaviour or actions are unacceptable and to correct issues early; and

Create documentation to demonstrate that an employee was treated fairly and was appropriately warned of the consequences of their actions.

Where progressive discipline eventually leads to a termination for just cause, documentation confirming that an employee was made aware of the issues and was clearly warned of the consequences for failure to correct problematic actions or behaviour may provide the employer with a defensible argument for termination for cause.

Progressive discipline is more commonly used where a single incident of misconduct is not so egregious to justify termination for just cause.

Managing employees who continuously violate a workplace policy or fail to perform their job duties can undoubtedly be a frustrating process for employers. When progressing down the path of progressive discipline, employers should be mindful that if an employee repeatedly engages in the same type of misconduct, it may be appropriate for the employer to move through the progressive discipline process more quickly than if the employee engages in different, unrelated types of misconduct. Ultimately, each case of progressive discipline should be assessed individually, based on the specific circumstances of the case.

The law of progressive discipline

Courts are typically more likely to uphold a just cause termination where the employer had previously warned the employee that a particular type of conduct is unacceptable and clearly and unequivocally warned the employee of the consequences for repeated conduct, namely the potential termination of employment.

Written documentation of the progressive discipline steps is particularly important.

The underlying principle is one of preventative and corrective action – the intention is that the employee will learn through experience and will face the threat of more serious discipline if their behaviour is not corrected.

An example of a case where an employer’s termination of an employee for just cause for incompetence was upheld is the Saskatchewan case of Schutte v Radio CJVR Ltd., 2009 SKCA 92 (“Radio CJVR”). In that case, the Saskatchewan Court of Appeal overturned what it held to be an overly stringent test imposed by the trial judge, ultimately holding that the applicable standard for just cause termination for incompetence is not one of an employee being “incapable” of performing their job duties, but a question of whether the individual was “consistently failing to meet a reasonable standard of performance” (Radio CJVR at para 17).

A key takeaway from the Radio CJVR case is that the Court of Appeal noted that while the standard of deficiency necessary to constitute grounds for summary dismissal is stringent where there is no significant misconduct such as dishonesty or gross insubordination, the standard of incompetence to constitute grounds for summary dismissal for incompetence is less stringent where the employee has been provided repeated notice that their performance is deficient, considerable assistance has been given to help them improve and clear warning was provided that failure to improve will result in termination of employment.

The Court of Appeal ultimately held that the employer’s expectations regarding job performance were reasonable, the employee failed to meet the reasonable standard of performance, the employer provided clear and unequivocal warnings, and the warnings clearly indicated that the employee would be dismissed if the standard was not met. Given these factors, the test for just cause dismissal was met and the employer was entitled to terminate the employee for just cause.

Another case that is illustrative of the importance of progressive discipline is Parent v Spielo Manufacturing Incorporated, 2013 NBQB 394, where the court upheld a just cause termination on the basis of incompetence. In that case, the employee’s job performance was addressed on a regular basis and the employer communicated concerns and gave suitable instructions to the employee to meet its standards. The employee was also given warning that a failure to meet the employer’s standards would result in dismissal. The court stated, “[i]t seems clear that [the employee] was not listening to the constant message that she had to improve her performance to maintain her employment at [the employer], otherwise she would be dismissed.”

The two case law examples above arise in non-unionized settings. The principles of progressive discipline for non-unionized employers addressed in this article are similar in unionized environments, subject to the terms of the collective bargaining agreement between the employer and the union.

Creating a progressive discipline policy

A proper progressive discipline policy is one that allows an employer to track an employee’s progress by implementing a step system, or formalized set of stages. Common stages of progressive discipline that can be formalized into a progressive discipline policy can include:

  • Verbal warning
  • Written warning
  • Suspension (with or without pay, depending on whether the employee’s employment agreement or the employer’s policy allows for suspension without pay, or potentially any applicable collective bargaining agreement terms)
  • Final warning
  • Discharge

It is typically recommended that an employer’s progressive discipline policy include a general clause that indicates that the employer retains the discretion to deviate from the discipline policy based on a review of the individual circumstances of each case.

It is recommended that employers obtain legal advice with respect to the appropriate approach to the progressive disciplinary process. The appropriate approach may depend on an organization’s progressive discipline policy. 

Ashton Butler is a management-side labour and employment lawyer with MLT Aikins LLP in Regina.

This article was originally published in the Spring/Summer 2022 edition of HR Saskatchewan magazine and is reprinted with permission from CPHR Saskatchewan and the author.