Discipline and Performance

1. Discipline and Performance PSP Mgrs Meeting, 4 May 2011 Sonja Gonsalves National Manager, Labour Relations

2. Financial Administration Act • Staff of the Non-Public Funds, Canadian Forces is the Employer • Separate agency in the Federal Public Administration (Schedule V of FAA) • FAA provides authority for HR Management • Includes authority to address performance, impose discipline and terminate employment • Must be for cause

3. Discipline vs. Performance Management • When to use each? • Performance Management (Admin Warning) • Incompetence, lack of knowledge, skill, ability or competence • Discipline • Conduct, include conduct relating to performance of duties • Intent is not required for it to be misconduct, only knowledge that action or inaction was not what is expected of them at the time of the incident • Why the difference? • Effectiveness • Test of cause

4. Questions to ask • Why did the employee not do it properly? • Does the employee know how to do this? • Have I seen him/her do this properly before? • Have I ever seen the employee perform at the level required? • Has his/her performance deteriorated?

5. Other clues • What would need to occur for the employee to do things properly in the future? • Can I identify a skill, knowledge, ability that the employee is lacking? • Can I identify training that the employee needs in order to do the work required?

6. Other considerations • How long will reasonably it take for the employee to acquire the skill needed (if immediate and ongoing is reasonable expectation – likely misconduct).  • Learning how to do something (incompetence) is different from failing to follow a policy, forgetting to check or use a reference tool (misconduct). • Not doing something or not trying to do something (misconduct) is different from trying but not knowing how to do it (incompetence). • Many times there will be elements of both – need to identify the root cause of the problem in order to determine best way ahead – sometimes both are done simultaneously.

7. Example 1 2 employees are in an escalating conflict which is witnessed by the Supervisor. Supervisor 1: Not sure what do to, decides it’s better not to do anything at this time Supervisor 2: Not sure what to do, attempts to resolve the conflict as best as he/she can, but employs ineffective methods

8. Example 2 Employee is dealing with a very difficult client who is being rude and disrespectful Employee 1: tries to calm the client down, but employs ineffective techniques Employee 2: is upset by the client and responds by addressing the client in the same rude and disrespectful manner

9. Example 3 Employee is responsible for entering data in a budget spreadsheet Employee 1: Does not understand the spreadsheet and puts the data in the wrong cells and puts the wrong data in the spreadsheet Employee 2: Understands the spreadsheet but accidentally makes typos/inputting errors when inputting the proper information in the spreadsheet

10. Performance Management • verbal counselling, verbal guidance and feedback • additional training (employer selected and imposed, not optional) • performance review form/pre-admin warnings/performance concerns letters • performance improvement plan – Administrative Warning • termination for incompetence

11. Administrative Warning • Formal notice of performance improvement plan and potential of termination • Requires training (OJT, formal) • Requires reasonable timetable • Regular feedback meetings: Get employee’s perception of things too. Be open to new ideas, ways to doing things to get the desired performance, so long as they don’t impact operational success/needs. • Keep notes with examples of observations, documentation. • Leave employee room to fail or succeed!

12. Discipline Natural justice/procedural fairness: • Situation must be examined in a timely manner, fairly and objectively • Employee is made aware of allegations against him/her and the relevant evidence (including who said what) and is given a chance to respond, with assistance if desired, before an objective decision is made

13. Discipline process 2 steps • Investigation • Disciplinary Hearing/Meeting

14. Investigation • Required in all cases of potential misconduct • Formality will depend on nature and complexity of allegations of misconduct • HRM and PSP HQ there for guidance • Goal – find out what happened (we will never know the whole story) and collect evidence that proves what happened • Remember that evidence/investigation findings will be needed in the event the case ends up before a third party

15. Investigation (cont’d) • Start with what you have been given initially • Organize your investigation • Meet with witnesses and get their version of the facts • Collect evidence • Meet with employee at least once during the investigation to review the allegations and evidence with the employee and get his/her side of the story (with union rep) – go back as new evidence if uncovered after meeting with the employee • Why? Fairness, helps prep ER case, may negate need for hearing/meeting • Ensure investigation is complete before finalizing

16. Tips • Keep copies of all documents/evidence • Keep your investigation/evidence organized • When meeting with witnesses, ask open ended questions only (no leading questions) • Let witnesses tell their story and probe for expansion of relevant portions (if you are not sure if it is relevant or not, probe anyway) • Get witness statements/validation of relevant witness testimony • Review/question/challenge what you have as you proceed to ensure investigation is complete • BE mindful of tendency to seek confirming evidence and not disproving evidence

17. Disciplinary Hearing/Meeting • Will be waived when not necessary (i.e. when the requirements of natural justice/procedural fairness were met during the investigation) • Choice depends on contentiousness of facts and complexity of evidence • ER rep is “prosecutor” – responsible for proving ER case (present evidence, witness questioning, cross examination, redirect) • Chair is “judge” – responsible for ensuring he/she understands both versions of the case presented • HRM – there to provide guidance to both chair and ER rep, can call breaks and give advice as needed to ensure process is defendable and ER interests are protected

18. Tips (general) • Goal is to ensure a fair examination of allegations and evidence • Employee must be given a chance to fully respond (with assistance) • Employee and employee rep should be allowed to speak and fully present their case • Make the process as informal as possible while ensuring the evidence is fairly and properly examined • Take notes • Ensure everything is examined during the hearing/meeting (nothing can be presented afterwards or outside of the hearing) • Break and reconvene if you need to

19. Tips for ER rep (prosecutor) • Know your theory of the case (what do you believe occurred) and ensure that this is what you present • Restrict evidence to current allegations (avoid discussing previous history unless it’s to respond to contradictory information about the past) • Make sure you fully present your case • Make sure your evidence to backs up your theory • Respond to employee’s evidence, particularly if/where it contradicts your theory of the case or where your evidence contradicts what the employee is saying • BE prepared (both for ER case and to respond to EE case – remember the employee’s response during the investigation) • Keep things simple • Listen to your HRM’s input (second set of eyes and ears) • TAKE BREAKS, REGROUP, SEEK ADVICE

20. Tips for Chair (judge) • Let the parties tell their story/present their case in full • Let the ER and EE rep (or employee) question witnesses • Ask for confirming/supporting evidence to support submissions • Ask questions only to ensure you understand what is being submitted • Avoid doing the job of the ER or EE rep • Avoid conducting your own investigation • Keep things simple • Listen to the HRM’s input (they are experts in the process) • TAKE BREAKS, REGROUP, SEEK ADVICE

21. Closure of hearing/meeting • Chair decides culpability in his/her report • Chair includes all aggravating and mitigating circumstances in his/her report • Manager with the appropriate Delegation of HR Authority decides disciplinary action, if applicable, and confirms this in writing in his/her decision letter • If Chair is the Manager with appropriate HR Delegation of Authority, the hearing/meeting report and decision letter are combined into a single letter • In order to ensure national consistency, Manager should seek guidance on appropriate discipline from HRM (and PSP HQ) • Only formal disciplinary action will go on employee’s file and forms part of permanent employee record (unless employee is unionized)