HR Insights 2024 | Spring

HR INSIGHTS

#22

COACHING AND PROGRESSIVE DISCIPLINE

In this issue, consultants from SARC and MLT Aikins discuss topics of coaching and progressive discipline in the workplace.

Contents

Effectively Utilizing Progressive Discipline in the Workplace

Amy Gibson

Coaching Before Discipline in Multi-Generational Workforce Climates

Bobbi Janzen

Progressive Discipline in a Unionized Workplace

Scott Mostoway

Article Contributors

About Bobbi Janzen

Bobbi identifies and fosters strategic partnerships with education, labour, other workforce organizations, and community partners to address Disability Service sector workforce needs and assists with talent supply and demand. She also leads workforce promotion strategies to connect job seekers to the Disability Service sector. Bobbi applies her background in talent acquisition, recruiting, and disability sector advocacy to this role and connects with our Members to learn more about the sector’s workforce needs. Bobbi is available to consult with SARC’s Regular and Associate Members on their workforce development inquiries, including recruitment and retention strategies, job descriptions, HR policies and procedures, compensation/total rewards, and succession planning.

About Amy Gibson

About Scott Mostoway

Scott can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and non-unionized organizations. He can also provide specific support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick check-in or a review done before decisions are made can save you time and money in the end.

Amy Gibson carries on a general labour and employment law practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts, OH&S, workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications.

Amy Gibson Lawyer, MLT Aikins

Scott Mostoway

SARC Senior Labour Relations Consultant

Bobbi Janzen SARC Workforce Development Coordinator

EFFECTIVELY UTILIZING PROGRESSIVE DISCIPLINE IN THE WORKPLACE

Amy Gibson Partner, MLT Aikins LLP

Managing employees who continuously violate a workplace policy or fail to perform their job duties can undoubtedly be a frustrating process for employers. Progressive discipline is an important tool that should remain front of mind when managing employee conduct and performance in the workplace. Unfortunately, it is a concept that is frequently under-utilized or misapplied.

The Benefits of Progressive Discipline

Employers may run into problems where they plan to terminate an employee for just cause but realize that they have not properly engaged in the progressive discipline process. Failing to follow progressive discipline may also have the unintended consequence of condoning an employee’s behaviour by not correcting it.

Progressive discipline involves engaging 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 repercussions 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 will be important evidence to support the termination if ever challenged.

The Law of Progressive Discipline

Courts and arbitration boards 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.

In Saskatchewan Association of Health Organizations (Prince Albert Parkland Health Region) and CUPE, Local 4777, [2013] SLAA No. 17, 230 LAC (4th) 372 (SK LA) [Parkland Health Region], the grievor was terminated after he failed to call in or show up for his scheduled shift. The grievor worked in the hospital’s emergency department as a casual porter and as a casual morgue attendant in the lab. An arrangement was reached in which the grievor was required to notify the charge nurse that he was leaving the emergency department to attend to the lab. After failing to provide the notice required on various occasions, the grievor was issued a written reprimand in September of 2009. The notification process changed in January 2011 so that the lab would notify the charge nurse when the grievor was needed. The grievor was told on

numerous occasions he was expected to return to the emergency department for the remainder of his shift after his work in the lab. On January 27, 2011, the grievor failed to return to the emergency department after his work in the lab and was issued a two-day suspension. A month later, the grievor received a three-day suspension for a similar incident. On August 2, 2011, the grievor was scheduled to work in the emergency department but did not call in or show up for his shift. The employer later found out that the grievor had worked in the lab that morning. The employer provided the grievor with a termination letter on August 24, 2011, citing his absence on August 2, the two suspensions, and the written reprimand as support for termination for cause.

The Arbitration Board in Parkland Health Region upheld the termination. The Board considered the fact that the progressive discipline was for acts of similar misconduct, all of which occurred within a proximate period as supporting termination for cause.

Progressive Discipline Policies

A progressive discipline policy will help ensure that the employer has a consistent procedure in place for implementing progressive discipline in the workplace. The policy should include a step-bystep system that allows an employer to track an employee’s progress. These steps 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

An employer’s progressive discipline policy should also include a general clause that indicates that the employer retains the discretion to deviate from the policy based on a review of the individual circumstances of each case. This provides an employer with the flexibility for responding to misconduct with a more severe penalty when progressive discipline may not be the appropriate approach.

Terminations from employment can carry numerous risks of employer liability. It is recommended that employers obtain legal advice with respect to the appropriate progressive disciplinary process, especially in circumstances where an employer believes it may lead to termination of employment for cause.

COACHING BEFORE DISCIPLINE IN MULTI-GENERATIONAL WORKFORCE CLIMATES

Bobbi Janzen SARC Workforce Development Coordinator

Coaching plays a positive role in the growth and development of all employees and can take place during any part of the employee lifecycle. It shows commitment on the part of the organization, and the desire to see their employees succeed. Times have changed, and we work in multigenerational workspaces that can span up to four generational groups. Methods that have worked in the past may not be as effective without changing things accordingly. Coaching is not in any way to replace the disciplinary process but to give your staff the tools to succeed from the start, and to be used as a precursor to the steps of the discipline process. It will help ensure your employees feel they are valued and have the tools to perform their roles. However, employees in certain generational demographics, such as Gen Z (born after 1997), perform best when they receive regular feedback. This particular generational group would benefit from coaching with a focus on this aspect as the means to steer them in the right direction. In this way, employees become part of the conversation about how to plan for things to “go right” instead after things have “gone wrong”.

All employees, regardless of generation, can benefit from coaching. This guides your staff in a positive direction and may reduce the need for progressive discipline in the future. Depending on the values of each demographic, they will benefit in different ways to this process. For example, some may find the input they provide helps them to direct their career in alignment with their goals, while other groups value the communication that takes place during the coaching process itself

as these are the tools they find most valuable. A coaching approach is beneficial when a supervisor or manager wants to grow their team and develop employees over a period of time. It can take place informally in daily conversations or have a more formal employee-directed approach. The employee must be engaged in order for coaching to be successful. A lot of times this starts with workplace culture, and the employee being the right fit. These factors can have an overall positive effect on the organization’s bottom line through improved retention and engagement, as well as an increase in the organization’s performance and efficiency.

What is a coaching culture?

A coaching culture is a way to ultimately boost performance and drive success. Emphasis in this type of workplace environment is on learning and growth in a supported manner. This process will be different for different employees with the end result focused on collaboration and innovation. The workplace climate is supportive in nature and thrives on feedback from both sides to obtain their objectives. A commitment to development is prominent in a coaching environment.

Coaching and the Generations:

Knowing what motivates your workforce can be key to its overall success. This opens the conversation to a slightly tailored approach. The challenge comes when we look at the different generations in the workplace and their specific needs in order to deliver effective coaching. The

way generations respond to feedback and how they view and need support will differ. Taking these into consideration can help us create and deliver coaching strategies and plans that will be effective and potentially reduce the need for progressive discipline in the future.

The landscape of the workforce today consists of 4 distinct generational groups:

• Baby Boomers (1946-1964): Desire to mentor, value face to face conversations, and respecting the knowledge they have. They require clear communication and do not need continuous feedback to succeed.

• Gen X (1965-1980): Consists of problem solvers, and they prefer straightforward communication, and are avid learners.

• Gen Y (1981-2000 aka Millennials): Prefers frequent digital communication, thrives on feedback, and is tech savvy.

• Gen Z. (2001-2020): Is more socially responsible and focused on making an impact. They prefer real-time feedback whether face to face or online.

Generation Alpha will be our workforce of the future and currently consists of the children and youth of today. Finding ways to leverage the different values of the generations in your workplace can help both define and refine your coaching strategies. We all evolve through time and keeping that in mind, the generational groups are all unique with different values and ideals. Generation X and Y currently are the largest represented generations in the workplace and in time this too will change. If we note the different values and preferences that the generational groups embody, we can create an approach that speaks to the whole organization.

Baby Boomers appreciate conversation, tend to be more independent, enjoy structure and opportunity for professional development and improvement. Gen X values teamwork and flexibility. Gen Y is very tech savvy and Gen Z does well with clear feedback and communication. Both Gen Y and Z prefer technology; you can implement an online feedback portion to your coaching method tailoring it to be inclusive to these demographics. Other groups may prefer a written format which can be added ort implemented. You can use the same coaching tool with different approaches to reach the different generations in

your workplace. An example of this might include tailoring the frequency of communication based on your employee demographic.

It is beneficial to take a deeper look into what each generational group values and how they thrive. With this information you can then mold your coaching approach to include each group by incorporating aspects to fit your employee’s needs. Consider combining an in-person session with a digital or online feedback component to accommodate more of the generational needs and preferences. Allow the employees to help define where they believe they need growth or development and expand on this. A supervisor can also make suggestions and ask for feedback; this allows you to work on a customized coaching approach.

A Precursor to Discipline:

Coaching your employees to success is a natural precursor to the progressive discipline process but does not replace it. Giving your staff the tools and methods for growth in a way that they understand improves the whole team’s chances for collaboration and will lead to greater retention and job satisfaction. Applying coaching to the workplace may reduce the need or frequency of progressive discipline andit will also engage employees in their own success. It provides an opportunity for employees to get involved in their future and may be a very effective method for managing multi generational workforces. To have coaching as an aspect of the company culture can affect the bottom line of service delivery. This may not have always been the way things have been done in the past, but as the workforce changes coaching is becoming more prevalent as a managerial tool.

If coaching is new to you, you can begin utilizing it within your teams and with new hires by starting with informal conversations. Coming up with an employee driven plan to move towards success may work well and steer your team in the right direction. A coaching approach may not always work. Not all employees are open to coaching, and sometimes despite our best efforts we don’t always get it right.

Considerations When Developing Coaching Methods In Multigenerational Environments

• Take note of your workplace demographics. This will help you appreciate the different values among the generations and determine

or steer your coaching methods.

• Gather feedback- what do employees value? What type of feedback do they prefer? What style of communication works best? Some employees require more feedback than others, and this is often the case in some groups such as Gen Z. and adding this approach can help met the needs of this demographic and ensure you are coaching the generations in ways that work best for them You can utilize this information to devise a coaching plan or process that will fit your organization.

• Note the strengths of your employees and areas that could be improved on. This information may give you areas to focus coaching towards.

• Some initial stages of coaching could include having an informal conversation or creating an online resource where employees can provide feedback on how they think they could improve their performance. This may show you gaps or opportunities for learning and development.

• Create a plan with the employee. Different generational groups will have differing view and focus on this prospect. For example, a Baby Boomer may express the desire to mentor an employee that belongs to the younger generations and you might consider a mentorship opportunity. A Generation X employee may put a strong focus on career growth and education and want to focus their coaching on development in these areas. Generation Z may want to receive real-time feedback and as for this to be provided during their coaching.

• Identify the barriers to success and outline solutions with your employees.

• Create regularly scheduled times to follow up and check progress in a style that works best. For Baby Boomers an in-person meeting might suit them best.

The end goal is a collaborative and cohesive workplace in where everyone feels valued and has the tools to succeed. While this is the ideal situation, employees will still be terminated following the progressive discipline process as needed and in accordance with the severity of the infraction. Processes outlined in Collective Bargaining Agreements must also be adhered to in unionized environments in this matter. As employers, it is our job to ensure the success of the organization and ensure the processes and expectations are met and reinforced. Coaching is a learning tool to set up that success, but when that fails or is not embraced by the employee, a clearly defined disciplinary process is key. In any organization, having your people succeed means success for the whole organization

PROGRESSIVE DISCIPLINE IN A UNIONIZED WORKPLACE

Scott Mostoway SARC Senior Labour Relations Consultant

A generally accepted practice in Canadian workplaces when dealing with employment matters is Progressive Discipline. It’s a system that can be easily used by employers both in unionized and non-unionized workplaces when dealing with misconduct or performance issues. In its simplest terms, progressive discipline is a system in which the levels of the penalties increase upon repeat occurrences. For example, a minor infraction such as a time and attendance issue would generally warrant a less severe response while a repeated infraction or more severe infraction would warrant an increased response. We as employers have the obligation to not only achieve the mission and objectives of the organization, but also provide a safe and healthy workplace for our employees and people supported by our employees. How can we best utilize a progressive discipline system to ensure an accountable workforce in a unionized workplace?

Progressive Discipline Consistency

Although there are slightly different variations of the progressive discipline process that vary from employer to employer, the general principles are the same. In a unionized workplace, consistency is key. A long established practice of progressive discipline severity will warrant the employer ensuring they follow the same consistent decision making going forward.

Take for example a unionized organization that has historically issued a written warning for issues related to insubordination. Fast forward to the current day, and the same employer is once again dealing with a similar insubordination issue with another employee. This time, though, the employer believes that a long suspension will be

warranted. This opens the door for challenge and potential risk. If the discipline is challenged, an arbitrator will likely be swayed by the employer’s past practice that similar events warrant similar outcomes. This makes our progressive discipline decision making extremely important when dealing with misconduct. This doesn’t mean that we should always be “heavy-handed” in our disciplinary decisions, but instead reminds us that if we traditionally deal with situations in a less severe fashion, it may hold us accountable when a similar situation arises and we want to deal with it in a firmer fashion. Analyzing each case of misconduct thoroughly, fairly, and consistently greatly limits potential liability from union grievances and arbitration.

Collective Agreement Restrictions and Procedures

Knowing our inherent management rights allows us to make a variety of decisions when determining disciplinary corrective action. These rights are reduced/restricted by the express language in the collective agreement. Articles on progressive discipline are no different. Procedure requirements must be strictly adhered to.

Many collective agreements, but not all, will outline a progressive discipline procedure. Items most often include the steps involved in progressive discipline, notice requirements, and representational rights. Why is this important to know? The answer is twofold. First, we should be using the progressive discipline system to effectively manage the workplace and ensure that we achieve our objectives and hold misconduct/ poor behaviour accountable. The second is to ensure that we do not lose our ability to deal with

misconduct by violating a procedural requirement in our collective agreements. Things such as not giving notice of a disciplinary meeting or allowing union representation can have the ability to make issued discipline null and void.

CBA Provisions Expressly Permitting Deviation from the Progressive Discipline Process

As we know in unionized environments, different situations will require a different disciplinary response. One of the greater misconceptions with the progressive discipline model is that no matter the situation, we are to follow the progressive discipline elements, starting from a verbal warning. Although smaller infractions will start at this step, that doesn’t mean that every situation will warrant a similar response. Beneficial language for collective agreement articles relating to progressive discipline are statements that expressly permit the deviation from the standard discipline process based on the severity of the issue. Although this decision-making ability is already an inherent management right, express language in the agreement reiterating as such can be a helpful tool. It acts as a continuous reminder to employees as well as the union that severe misconduct can be dealt with in a firmer

fashion. It eliminates the argument of employees and unions that the employer is strictly bound by the steps in progressive discipline and that “every” incident must be dealt with on the first “rung” of the progressive discipline ladder. This, in turn, potentially reduces the risk of challenge to management decision-making, saving the employer valuable time, money, and resources.

A helpful set of resources in determining a disciplinary response is the “Grounds for Discipline Checklist” and “Factors to Consider When Determining the Disciplinary Penalty” in SARC’s Manager Resource Area. These resources act as a guide in determining which situations are generally classified as more severe and would be more appropriately dealt with by issuing a more severe disciplinary penalty, such as a written warning or suspension. Each individual situation will require a detailed review of both the evidence and the situation at hand. Being able to appropriately apply progressive discipline that rectifies these issues as well as holds your workplace accountable is the key to building a culture that not only expects but demands good work from everyone.