Recruiting

The Progressive Discipline Process Spelled Out

Progressive discipline (PD) is the process that works to correct an employee’s poor performance or behavior through constructive and formal feedback to their behavior. This may include a series of formal documented steps. Including but not limited to verbal counseling, counseling, written warning, possibly a performance improvement plan, and as a last resort, a complete dismissal from employment. Other than these there are various ancillary components to this process that would be discussed at length.

The progressive discipline process is generally utilized by managers to call attention to, staff members who are falling short of the minimum goals or standards expected. Progressive discipline steps are also used to take action against staff members who have violated the behavioral policies of your business. The core purpose of disciplinary proceedings against a staff member is not to punish the employee, but instead to help them increase their productivity and/or correct their poor behavior. PD in effect is a process that helps provide managers with a way that is fair and consistent, and treats everyone the same. The progressive discipline process, if used consistently, not only helps management handle all disciplinary action consistently, but also protects the lawful rights of both employers and employees.

The major components in a progressive disciplinary process should include:

The standards applicable to the Progressive Discipline Process

All Disciplinary processes should have an element of fair play. If there is any inherent bias and favoritism in applying the standards as enshrined in the employee manual, it would leave the organization open to charges of ‘unfair practices.

Investigative Meeting

As the term implies an Investigative meeting (IM) investigates the causes of the employee’s behavioral issues or lack of performance thereof. It is different from a disciplinary issue since the purpose is not to pass judgments but merely to establish the facts of the case in front of both the committee members as well as the employee. Typically, the meeting includes one or more members of the management and the offending employee himself who may be accompanied with a workplace colleague to help substantiate his arguments.

“Just Cause” Standards

Before taking any severe measures, the progressive disciplinary process has to include certain standards. At its simplest the near universal concept of Just Cause denotes ‘a reasonable and lawful ground for action’.  In other words, it’s a standard of “reasonableness” that is used to assess an employee’s behavior (in the context of employer/employee relationships”) within specific circumstances. “

As per American labor practices there is a standard of seven factors that are used to determine Just Cause in the labor and employment context

 

1. The employee knew of the company’s policy

Example

A worker violates the company policy regarding profanity that is part of the employee manual. Nevertheless, he persists in using the same in spite of multiple oral and written warnings, then it may be grounds for severe action.

2. The company’s policy was reasonable

Example

The employee had not only read the manual but also signed the joining documents in which profanity was classified as a serious offense.

3. The organization carried out an investigation to determine that the employee was in violation of the policy

Example

A committee was formed to probe the charges against the employee and after carrying out its task it submitted the written testimony of other employees to the management along with its findings.

4. The investigation was fair and objective

Example

There was no element of ‘railroading’ or favoritism and the employee was given ample opportunity to defend his action.

5. Substantial evidence existed of the employee’s violation of the policy

Example

In the case of theft of company property, CCTV footage of the employee was captured while he was actually committing the crime

6. The company’s policy was consistently applied

Example

The policies have to be the same for every employee irrespective of the level of his seniority.

7. The discipline was reasonable and proportional to the offence (i.e., the punishment fit the crime)

Example

The employee using swear words was suspended without pay for a week, while the worker who stole company property was terminated from service.

 

Different types of DA (Disciplinary Actions)

Verbal discussion/reprimands

Once a manager or a supervisor observes up close, a worker’s performance issue, he or she should determine the cause and if it’s not a temporary extenuating factor, he should issue a verbal reprimand. The manager should enquire about the root cause of the issue, i.e., if the low performance is due to a lack of experience or skills or workplace related factors. And what steps does the employee think are needed to correct the same. He should offer his full support as well as the overall support of the organization to ensure the employee’s work is up to per. However, even an oral reprimand or discussion should be documented and detailed notes and memos taken just in case any further action is deemed necessary.

Written warning

If mere oral discussions are not able to solve the problem or even create more of them, then the employer would be well within his rights to issue a “written warning” on the organization’s official letterhead. The supervisor should hand the employee a written warning describing in detail the offensive behavior, along with any penalties that it would entail should it not be rectified. The written warning should explicitly state the performance standards that have not being maintained and are being used to measure the worker’s productivity. Moreover, not only should the written warning be delivered to the employee, but a sighed copy acknowledging the same should be taken from him to ensure that he would not be able to claim that he had never received it in the first place. The HR department should place the duly signed copy in the employee’s personal file.

Dos and don’ts of written warning letters

Dos

  • State the problem due to which the warning has been submitted
  • Refer to previous discussion (the single or multiple oral warnings that have already been issued)
  • While drafting the warning letter state the specific actions that are needed for rectification of the objectionable conduct or lack of performance
  • Indicate in the first paragraph of the letter that it represents the commitment of formal disciplinary action procedures and the level of its warning (i.e., if it’s a first or a last warning)
  • The warning letter should explain to the employee without any ambiguity, the penalties that would be incurred if they continue to under performance and/or poor behavior.
  • Signature and date lines that the employee would have to sign both on original and duplicate copies that would be part of his employment record.
  • Try to be specific without meandering into useless discourses that are beyond the scope of the warning letter.
  • Do state what policy the employee violated. Whenever possible make it a point to attach a copy of the policy that has allegedly been violated.
  • In the WL make it a point to indicate precisely why the violation is harmful to the organization. (By providing this context, you would be able to clarify, why an otherwise seemingly innocuous violation may have grave consequences. A point that may not be obvious to everyone involved and would help the offender realize the gravity of his error)
  • Provide clear worded and specific instructions on how the employee can improve with the help of concrete suggestions.
  • Do issue reprimands consistently irrespective of the position of the violator. This will help ensure that all concerned are to be held to the same standard.
  • Follow up on the Written Warning letter in order to see what effect it has had on the employee’s behavior or performance.

Don’ts

  • The Warning letter should be devoid of personal remarks, accusations or medical opinions. Examples
    – “You are a worthless piece of garbage” (Negative personal remark)
    – You stole the PC and… (Without any evidence or trial this would be classified as an accusation)
    – I think you are depressed and psychotic (Unsubstantiated medical opinion.)
  • Don’t be vague, since ambiguity kills the purpose of the WL.  After all the whole point of the WL is to make the employee understand specifically what it was that he did wrong, what he needs to do to improve his performance and exactly how he is going to do it
  • Being specific is good but being over specific is not and may well appear to be nit picking to the extent that it might appear to be willful bias.
    Example
    If the Warning Letter is being issued for habitual late coming then it should mention that fact but it should not be so detailed as to appear out rightly unfair such as stating “XYZ came late by 1 and a half minutes.”  Using such details in a written document may allow the employee to contest it later since it will be scrutinized with the intention of investigating if the same standards were universally applied to all the other members of the workforce of the organization and everyone else was equally penalized for such seemingly minor infractions. If such were not the case, it would give the employee grounds for discrimination.
  • Don’t issue written warning or serious penalties such as demotion or dismissal without at least two witnesses being present in the room.
    Example
    “The Management of XYZ Company has decided to terminate the employment of Mr. ABC due to chronic underperformance and habitual late coming.  The letter will be handed over to him at his workstation and at least two company representatives would bear witness to him receiving it and signing it in their presence. More ever those witnesses must be made aware beforehand that they might have to take a stand in a court of law against the terminated employee and must express their willingness to do so beforehand.  This will help minimize any ambiguity and questions over what actually occurred.

Note: It may be advisable to have large and strongly built witnesses just in case the terminated employee reacts violently to his termination.

  • Under no circumstances should any warning or penalty letter (such as suspension, demotion, termination etc.) or its duly acknowledged receipts be lost. It must always be remembered that a lost document is a document that has never existed in the eyes of the law.
  • Don’t forget to put in an employee signature line. “It’s imperative that the organization made every attempt possible to get the employee to sign off his penalty/reprimand.”  However, if he steadfastly refuses to sign it make sure that you note it down on the reprimand/punishment letter and get the signatures of the two aforementioned witnesses to the act of refusal.

Following these’ Dos and Don’ts’ of documentation guidelines while initiating or administering Disciplinary Action against offending employees would not be a complete shield against any subsequent lawsuits filed by the disgruntled employee. (Or ex-employee as the case may be) However, it will help ensure that (should the need arise) employers will be well placed to defend their decisions in the court of law.

PIP (Performance Improvement Plan)

A PIP may be drafted either before or when warnings are issued (Both oral and written). It will take into consideration the employee’s limitations as well as capabilities and seek to ensure that his performance comes up to minimal acceptable standards.  If it does not do so in spite of the implementation of the PIP, then the organization may consider termination from service as an option.

Punishments/Penalties of the Progressive Discipline Process

If a low performing employee after due process including many or all of the above components refuses to maintain minimum standards or alter his objectionable behavior, then he may be penalized with the following punishments:

Suspension without Pay

Suspensions without pay are generally awarded for behavioral issues rather than performance related issues. The period of suspension may vary from a single day to months, depending on the severity of the offence. In some cases, an employee may be suspended (such as sexual abuse/assault cases or theft cases) pending the outcome of the DA proceedings. If he were to be exonerated, he could be re-instated with back benefits.

Blocking of promotion

If an employee is due for promotion, he may have his promotion blocked due to his lack of performance or behavior issues. Such a block on promotion may continue indefinitely as per the discretion of the management.

Example:

Mr. James is an assistant marketing manager at ABC pharmaceutical company and was due to be promoted to marketing manager after his next appraisal, but after he was involved in a physical fight with another staff member, his promotion was blocked for the duration of that year.

Freezing seniority

This generally occurs in government organization or very large private ones. An employee may be due to be promoted by virtue of his seniority in an organization where promotions occur automatically once a certain period of time has been served at a specific post. However, lack of performance may cause the management to freeze his seniority at his current level indefinitely or at least till he has been able to improve his performance to the minimum acceptable standard.

Example:

ASP (Assistant Superintendent of Police) Peter Smith has been in service since the past ten years and should by rights, have been promoted to full SP (Superintendent of Police) at least three years back, but his seniority has been blocked due to the fact that he had miserably failed to control muggings and violent crimes in the areas falling under his jurisdiction.

Blocking increments and bonuses

Increments

This form of punishment is typically used for both performance related issues as well as behavioral offences.  The employee may have his annual pay increments curtailed or out rightly blocked for a pre-specified period of time that may be increased by the management if and when it deems fit.   Usually, such penalties are awarded for a one-year period and periodically reviewed. If the worker’s performance does not improve the block is extended till the time it does.

Bonuses

A ‘bonus’ is awarded to an employee over and above his salary when his work has proved to be of such extra value that it deserves recognition by the management to ensure the individual is sufficiently motivated to continue to work with the same enthusiasm. When it comes to underperforming employees, such bonuses are almost never awarded to the worker since he is not even able to maintain the standards to justify his own salary let alone any extra rewards (Cash or otherwise). However, in the case of a well performing employee who has to be penalized for objectionable behavior, the removal of the bonus he has earned is considered a good enough form of censure to motivate him to rectify his behavior.  Some organizations may, (if they consider the individual important enough that is) give him the bonuses that he had accrued during the period he was penalized. These are supplemental to the fresh bonuses he may have earned after he had corrected his behavior.

Demotion

Next to outright termination this is considered one of the most severe punishments that an employer/ organization could award to its employee(s).  Provided the due process has been conducted (and in case of behavioral problems) the employee has been found guilty or in the case of lack of performance that could not be rectified, in spite of a performance employee plan and multiple warnings both written and oral, the employee may lose his seniority and be demoted to any rank below his own. It may be a single step downgrading or multiple steps.

Demotions generally show the management’s extreme displeasure with an employee and are sometimes a prelude to outright termination.  If terminations may prove very difficult (such as in government organizations) demotions are used to inform the employee that they are really not wanted and should opt to resign on their own. It is considered a very drastic measure since it means a loss of dignity, respect, power and status of the employee and would severely de-motivate him and hamper his subsequent productivity.

Example 1

A police inspector and the overall in-charge of his own police station may, once he has been convicted of crimes involving moral turpitude be demoted to ASI (Assistant Sub Inspector) at his own police station to make him realize the gravity of his offence.

Example 2

A regional sales manager who consistently fails to meet his targets may be demoted to assistant sales manager or even sales executive.

Termination/Dismissal

The final step would be the irreversible termination of the worker’s employment.  This step should be a last resort and only to be undertaken if the employee has failed to live up to the standards as set by his tailor-made PIP (performance improvement plan). Every step of the progressive disciplinary process would clearly elucidate the penalty for failure to take responsible corrective action. Moreover, all documents issued to him (including the PIP) should have copies duly acknowledged and signed by him, placed in his personal file as maintained by the HR department or by the employer himself if the organization does not have an HR department.

Procedures

Procedure for suspension

Once the management has decided that the employee deserves to be censured though a suspension, it must meet certain requirements to satisfy all legal criteria.

  • As a general rule, the authority issuing the suspension must be competent to do the same, i.e., has the power to take and enforce such a decision.
  • The suspension order must be in writing. (Verbal orders do not count as being legally enforceable
  • Specifically, state that it’s a suspension order
  • State without any ambiguity why this action has been taken (i.e., the cause or causes due to which the suspension is taking place must be clearly mentioned)
  • The date from which the suspension comes into effect
  • State that the employee has 7 calendar days within which to appeal the action (This proviso may also be amended to 7 working days)
  • The suspension order must be delivered to the employee and receipt of acknowledgement taken from him
  • Another copy should be delivered to his home via certified/registered mail.
  • All receipts must be filed in his personal file
  • The employee ‘Must” receive the suspension order no later than 24 hours of the effective date of the suspension.
  • The Suspension letter should clearly mention that its is’ suspension without pay’ (Unless this proviso is not applicable to the case)

Procedure for demotion

In the ‘employee relations’ context, demotions are rarely easy and the procedures for demotion are as strict as termination/dismissal. Every employer who wants to demote an employee is under obligation to follow a fair procedure. i.e., no demotion may be affected without prior consultation of the employee.  If an employee is arbitrarily demoted without allowing him his legal right to a hearing in which he could defend himself, it would be considered an ‘unfair labor practice’. And in subsequent litigation the court may not only award him his previous position but may well do so with full back benefits and privileges including bonuses, perks and backdated salaries.

A unilateral decision to demote an employee cannot be undertaken because the employer is under contract to pay the employee a pre-determined salary for a predetermined rank. Arbitrarily changing either one or both these conditions without following the steps of the ‘progressive discipline process’ would potentially leave the employer open to a legal challenge and subsequently probable reinstatement of the employee with full benefits and/or damages that the courts may deem fit.  However, once the due process has been applied, the procedure for demotion is the same as the procedure for suspension.

Procedure for termination/dismissal

The termination or dismissal of an employee should not be all that difficult once all the required steps have already been taken and neither should it be a shock to the employee since he has been part of the whole process beforehand. The process of delivering the termination letter should be the same as that of issuing the show cause notice. And all documents and receipts placed on record. These documents would constitute the main defense for the organization should the disgruntled ex-employee opt for a lawsuit. As for the termination/ dismissal itself the procedure would be the same as for suspension and demotion with the added cravat that all the property of the company has to be returned within a stipulated time frame that would be clearly mentioned in the termination letter.

Prior to terminating the employee, the management must make sure that it has reviewed all associated documentation. Also, it may be advisable to contact a well reputed legal counsel or HR representative (if any) to make sure the case is justified or to oversee, if any measures have been omitted. The management must also make sure that it’s following all state-specific wage and hour regulations.

Termination: Days and times

While there is no specific day to terminate an employee, some days and times may be less desirable than others.

For example, weekend afternoons are generally not considered a good idea because the fired employee has all weekend to brood about his dismissal. While opinions on when to dismiss a worker vary widely, however the general consensus is that, earlier in the week is preferable, as well as earlier in the day, typically the first hour of the first half of the first working day may be the best suitable time for this unpleasant task.

Legal issues with terminations 

“Employment law” is something to always review and consider before ever taking a negative employment action against an employee. Review your local laws, rules and regulations for determining whether the dismissal or negative employment action of an employee will be just and if not, what would be the remedies available.  The law is mainly concerned with violations of employment contracts, i.e., if the employer had the right to terminate the services of the employee or said termination was in violation of the employer/employee agreement. Apart from progressive disciplinary cases, it also deals with discriminatory practices at the workplace. Said practices may include but are not restricted to gender and sexual orientation and also race, religion and so forth. The courts can in any of the above strike down a termination order and ensure the employee is reverted to his original position with full back benefits and or damages.  Therefore, to both avoid legal reprisals as well as to protect the organization from them, should they occur it is imperative that all the steps mentioned in the’ disciplinary action’ process must be rigorously applied and all documentation recorded.

You may also like
Turnover Will Destroy A Business
Employee Handbook
Get your hands on an essential Employee Policy Manual today!

Leave Your Comment

Your Comment*

Your Name*
Your Webpage