Both employers and employees often have questions about how discipline should be used in Ontario workplaces. They want to know what should happen when employees make serious mistakes or participate in behaviours that lead to accusations of misconduct. Should an employer move to terminate an employee immediately? Or are there other ways in which an employer should approach an employee who has had some trouble at work? What is legally the best option to take or the best way in which to navigate these issues?

This blog seeks to offer some guidance. We will look at the legal concept of progressive discipline and why in most cases it may be the preferable option for both employers and employees and how it will reduce risks of litigation.

Termination for Cause and Wrongful Dismissal

First, let us remind our readers about key terminology that needs to be understood for the readers of this blog to fully understand the legal issues at hand and how progressive discipline is important. The two terms are 1) termination for cause and 2) wrongful dismissal.

Termination for cause occurs when the employer dismisses an employee without providing notice of termination or a severance package, as the employer has alleged that there is “cause” or “just cause” for the employee’s termination. Termination for cause is appropriate in cases where the employee has engaged in serious acts of misconduct, habitual neglect of duty, grave incompetence, etc. The acts or omissions must have gone to the root of the employment agreement, and it will make it impossible for the employment relationship to continue. However, in Ontario, the bar in cause cases is high and the onus to prove it is on the employer. Ontario courts use a contextual framework where cause is at issue. Generally, the longer the length of service the less justified it is for a reasonable employer to terminate an employee for just cause based on certain conduct. Finally, in cases where an employee was fired for cause, the employer is most likely will not provide the employee with notice of termination or pay in lieu of that notice.

In situations where an employer has terminated the employment of the employee “for cause” but may have improperly alleged that they had cause (when they actually did not), the employee may move to claim that they have been wrongfully dismissed or wrongfully terminated. In cases of wrongful dismissal, the employee that has been wrongfully terminated is entitled to pay in lieu of reasonable notice which would consist of all entitlements the employee would have been eligible for but for his or her termination, such as bonuses, pay increases, etc.

Key Features of Progressive Discipline

Simply put, progressive discipline means that the employer takes several steps before they move to terminate the employee for cause. The purpose of progressive discipline is so that the employee has a change to try to correct their behaviour and avoid termination. These steps are generally structured and escalatory, meaning that the employer’s actions related to discipline are orderly, make sense given the context and misconduct that has taken place, and that disciplinary steps also increase in seriousness if the misconduct continues. For example, for a first act of misconduct, the employer may only provide a verbal warning, and if the misconduct does not cease, the employer may then move to other forms of discipline such as a written warning, suspension, etc., in an effort to get the employee to stop engaging in acts of misconduct.

Progressive discipline is necessary in cases where the employer is concerned about an act of misconduct that the employee has engaged in but is not confident that the misconduct is grounds for immediate termination. The fact is that in most cases, a first act of misconduct (or even series of behaviours or actions) does not reach the level of gross misconduct (such as violence or major theft) where an employee can confidently say that the employee would not have a claim for wrongful dismissal. As such, in most cases, the proper course of action would be to engage in progressive discipline rather than immediate termination for cause to minimize the risk of litigation.

Examples of Progressive Discipline

Here are several examples of common forms of progressive discipline:

1. Providing the employee with a verbal warning.
2. Providing the employee with a written warning.
3. Providing the employee with a “final” written warning.
4. Attending a in-person or online meeting with the employee.
5. Providing the employee with additional instructions.
6. Providing the employee with additional training.
7. Providing the employee with a performance review.
8. Putting the employee on a performance improvement plan or “PIP.”
9. Providing the employee with company policies or other documents.
10. Putting the employee on a suspension.

The employer may use different types of progressive discipline depending on the context, the employee and the type of misconduct at hand. For example, an employee who made several errors in their work output may simply need a performance review and additional training while another employee, who had engaged in more deliberate and serious actions such as harassment or bullying, may need stronger acts of discipline such as the use of several warnings and a suspension from the workplace.

Progressive Discipline Steps that Employers Should Take

Here are some steps that employers should take to engage in progressive discipline. This is not a complete list and as there may be an increase or decrease in steps depending on the context and type of misconduct that the employee has engaged in.

1. The first step is that the employer sets out to the employee what the act of misconduct is and why the employee feels that these actions are misconduct.
2. If that does not resolve the issue, the employer should next move on to a warning which should be in writing. The warning should include what has been happening and that the employer had set previously that these actions were misconduct and that the employer should avoid engaging in these actions.
3. If the employee continues to engage in the same misconduct behaviours, the employer can then move onto more serious forms of discipline such as a suspension.
4. Finally, if the employee still continues to act in the same manner despite all the above, the employer may then move to terminate the employee for cause.

The above steps are not exhaustive or set in stone, and alternatives may be used given the set of circumstances at hand. Employers will need to treat different acts of misconduct differently and different employees differently. For example, if the act of misconduct was incompetence with respect to the employee’s job duties or responsibilities, the employer may use tools related to additional training or performance reviews. However, if the employee has engaged in behaviour that resulted in bullying or harassment, more drastic actions may be needed on the part of the employer such as a third-party workplace investigation or suspension. Further, if the employee has had a long record of service with the employer with a clean history, the employer may need to take additional steps to ensure that the process of was fair.

We must emphasize that the above analysis is context and fact driven. Ontario courts would look at a variety of factors to see if the disciplinary steps taken by the employer were valid and necessary to ascertain whether the employee’s dismissal for cause was justified.

What Employees Should do if they are Subjected to Progressive Discipline

The employee should engage with the process and not hinder the disciplinary steps. However, they should understand that progressive discipline may still ultimately lead to termination. They should contact an employment lawyer if they have any concerns so that the employment lawyer can guide them and help them navigate these issues, so the outcome is as fair as possible. We also strongly recommend that the employee ensures that they document their communications with the employer and keep a record of any disciplinary actions.

How Zeilikman Law Can Help

Approaching an employment lawyer is necessary for both employers and employees when there are issues surrounding progressive discipline. The legal analysis of progressive discipline is fact driven. Employment lawyers like the ones at Zeilikman Law can assist both employers and employees by reviewing the facts surrounding the matter at hand and help them determine what the next best steps are to take given what the law sets out about progressive discipline.

For more information on a related topic, please visit our blog entitled The Truth About Performance Improvement Plans or “PIPs”.

Employers and employees can contact our office at (905) 417-2227 or online here to schedule their own confidential consultation with Zeilikman Law.