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EMPLOYMENT LAW
Sep 16, 2014

Misconduct or miscommunication?

Is a slap on the wrist necessary if employee misconduct stems from good intentions?
    

By Jeffrey R. Smith 

Employers have an interest in maintaining a certain standard of conduct for employees in the workplace. The level of this standard can vary depending on the type of workplace it is — a machine shop may have different levels of acceptance for certain types of behaviour than an office environment, for example.

But regardless of the casualness or professionalism of the workplace, maintaining that standard can be important to the productivity and health of the working environment. If employees don’t meet that standard, discipline may be necessary. 

It’s an established principle in employment law that the purpose of discipline is to correct inappropriate misconduct, unless that misconduct is so egregious it damages the employment relationship beyond repair — in which case dismissal, the “capital punishment” of employment, is a solution.

Progressive discipline is the accepted method to correct employee misconduct, with a series of increasingly serious sanctions for multiple instances of misconduct, each time giving the employee a chance to improve and giving sufficient warning before reaching the point where dismissal is an option. 

Key elements to an effective progressive discipline policy are consistency and reasonableness. Just like just cause for dismissal, there has to be just cause for discipline, and this includes even application of the policy for all employees. If one employee receives little or no discipline for misconduct, then it could be seen as the employer tolerating the behaviour, which makes it difficult to then penalize someone else. An employer could also get in trouble if the discipline doesn’t fit the crime. 

Border services 

The Canada Border Services Agency (CBSA) is in the news right now, thanks to some controversy over discipline it meted out to employees. Earlier this year, three border guards in Manitoba were requested by the RCMP to help out in a stakeout less than one kilometre from their posts. The guards, who believed the Criminal Code of Canada required them to co-operate with law-enforcement officers, participated in the stakeout. The suspect was arrested and they returned to their posts less than one hour later. 

CBSA investigated the situation and determined the three guards breached a policy prohibiting them from leaving their posts for an “unauthorized purpose.” The guards were each suspended without pay for up to 25 days. 

The suspension prompted outrage from some, including federal public safety minister Steven Blaney, who sent a letter to CBSA asking for clarification on the agency’s policy and why the guards were suspended. Jean-Pierre Fortin, president of the Customs and Immigration Union, sent a similar letter. 

The circumstances raise the question of the true purpose of discipline. Are the guards really guilty of misconduct by complying with the police request? Even if they are, is the policy they breached reasonable? And it also raises the issue of intent — the guards likely thought they were doing what they were supposed to do and for the greater good. It may not be necessary to correct their behaviour — perhaps it’s more about better informing them about CBSA policy, if anything. 

Is it always necessary to implement discipline if an employee breaches the employer’s policy? How much should intent and the need for correction factor into it? 

    
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