Performance Management and Progressive Discipline

1. Performance Management and Progressive Discipline Carl Cunningham Bennett Jones LLP September 2013 Independent Diagnostic Clinics Association

2. Topics • What is Performance Management? • The Benefits of Performance Management • Performance Management Tips • Discipline – Performance v. Misconduct • Progressive Discipline • Absenteeism – Innocent v. Culpable • Questions

3. 1. What is Performance Management? Performance Management is a Tool • Includes performance evaluations, individual action plans, training programs, progressive disciplinary processes, warning letters • Identifies employee strengths and weaknesses and removes obstacles to improve performance • Documents employee performance for future reference in promotion, discipline, or dismissal • Motivates employees by aligning individual and organizational goals, clarifying expectations, and setting out consequences of success and/or failure

4. 1. What is Performance Management? Performance Management is a Process • Should be an ongoing activity – is more than just annual reviews • A process of setting goals, setting standards, and guiding employee performance to ensure efficacy and efficiency • A process of maintaining open, constructive lines of communication, ensuring employees have the information they need to fully contribute • A process of creating documentation for legal purposes, to support decisions and reduce disputes

5. 2. The Benefits of Performance Management Financial Gain • Reduce costs by improving employee efficiency and reducing turnover • Reduce the risk of potential litigation of wrongful dismissal claims Motivated Workforce • Improve employee engagement by aligning individual goals and organizational goals • Clarify and reinforce the consequences of employee successes and/or failures • Focus on continuous improvement Improved Management Control • Encourage compliance with management expectations by communicating workplace standards, and the consequences of breaching those standards • Be prepared for future disputes by maintaining well-documented, standardized processes and up-to-date employee files

6. 3. Performance Management Tips Set organizational goals • Create organizational standards, rules, and policies to ensure employees are aware of expectations • Policies should be communicated to employees, particularly when changes are made Set individualized goals • Create personalized employee objectives, plans, and targets • Address individual employee strengths, weaknesses, and areas of improvement Align individualized goals with organizational goals • Make it clear why performance matters – How do individual contributions further high-level goals? • Optimize incentives • Reward accomplishments that benefit organizational priorities • Identify and discourage unproductive behavior

7. 3. Performance Management Tips Monitor Employee Performance Employee performance should be monitored and evaluated regularly • Application of organizational standards should be clear, fair, and objective • Ignoring or tolerating poor performance or misconduct can be considered condoning the behavior in a wrongful dismissal suit Employee performance should be monitored for immediate and short term use • To use in performance evaluations • To use in developing training and educational programs • To provide timely and frequent feedback Employee performance should be monitored for long term use • To support compensation and career planning decisions • To protect against legal disputes

8. 3. Performance Management Tips Provide Performance Feedback Performance Feedback should: • Be consistent and objective – Based on organizational policies and standards • Clarify expectations – Apply organizational expectations to individual performance • Be specific – About what was achieved and what is required • Give deadlines – Timetables for improvement, specific follow-up dates • Be realistic – About what improvements are possible, and how quickly • Be honest – Do not avoid criticizing employee behavior, no matter how uncomfortable • Be complete – Write evaluations so someone external to the process can understand it • Listen to employees – Give employees a chance to express concerns, needs, and goals

9. 4. Discipline: Performance v. Misconduct Understand Difference Between Performance Issues and Misconduct Performance • Employee lacks the skills or abilities required for the job • Examples: Incompetence, failure to provide satisfactory reports, failure to attend a meeting on time, ignorance of applicable standards, rules, or procedures Misconduct • Employee commits insubordination or violates workplace rules or policies • Examples: dishonesty, theft, harassment • Misconduct can be minor or severe, depending on the seriousness and frequency of the problem, the employee's work history, and the effects on the organization

10. 5. Progressive Discipline Overview • Progressive discipline has the goal of correcting poor behavior and sculpting better and more productive employees • Usually consists of four steps: • Verbal Discussion • Written Warning • Suspension (only applicable if this is a term of employment) • Dismissal • Progression of steps increases likelihood employer can prove just cause • Important to act promptly – Tolerating or ignoring poor performance could be considered condoning the behavior, in which case the behavior cannot be used as cause for dismissal

11. 5. Progressive Discipline for Performance Goal: Improve Employee Competence and Productivity Best Practices: • Speak with the employee and clarify performance expectations • reasonable and attainable objective standards • Give the employee a fair chance to improve performance • provide job training and supervision • allow enough time for the employee to develop new skills • If behavior does not improve, notify the employee in writing of the consequences for failure to meet expectations, including dismissal • Review performance • If performance does not improve, consider further opportunity to improve (e.g., 90 day plan, then 30 day plan) • If performance does still not improve, consult with counsel and consider options, including dismissal

12. 5. Progressive Discipline for Performance Important to Remember: • Documentation: Keep a paper trail of all steps in the process (meetings, training sessions, warnings, reviews) • Objectivity: Show that reasonable, objective performance standards were established, and that the employee failed to meet these standards • Give specific warnings: Expressly warn employee about the consequences of failing to meet standards. Notify the employee, in writing, that his or her job is in serious jeopardy if performance does not improve • Allow for improvement: Give a reasonable period of time to improve, and reasonable assistance in doing so (additional training or education sessions)

13. 5. Progressive Discipline for Misconduct Goal: Put an End to Negative Behavior Assess Seriousness of Misconduct • Serious misconduct • may be just cause for termination • needs to be reviewed in light of surrounding circumstances and a proportional response taken (e.g., consider context such as length of service and prior discipline) • Examples: theft, willful misconduct, abuse or serious harassment of other employees • Minor misconduct • is more likely to be remedied through progressive discipline • Examples: repeated lates, failure to follow procedures, improper use of equipment

14. 5. Progressive Discipline for Misconduct Best Practices: • Speak with the employee, give verbal warning • Allow all sides of the story to be heard, collect all facts, including from witnesses • Review job expectations and outline the consequences of failing to meet expectations • If behavior does not improve, issue a written warning, expressly mentioning further discipline up to and including potential dismissal • Consider whether suspension is appropriate (Note: risk of constructive dismissal claim by non-union employees) • If behavior does not improve, consult with counsel to consider potential termination for cause Important to remember • Documentation, objectivity, specific warnings, time for improvement

15. 6. Innocent v. Culpable Absenteeism Culpable Non-Culpable Justified absence Medical grounds Other personal excuse Permitted absence Medical appointments Disability Response Carefully review to consider if requires counseling, assistance and/or accommodation • Absent without reasonable excuse • Absent without leave • Failure to call in and report • Abuse of leave of absence • Reporting to work in unfit condition • Leaving work without permission Response • Requires disciplinary measures

16. 6. Culpable Absenteeism Identifying Culpable Behavior Intentional actions of the employee Employee knows what is expected, is capable of meeting expectations Unauthorized absences, where authorization is required Unsubstantiated absence, where evidence is required Responding to Culpable Behavior Assess severity (willful misconduct, reoccurrence, harm to organization) Progressive discipline

17. 6. Innocent Absenteeism Identifying Non-Culpable Behavior • Presume non-culpable • Request evidence, where required (prior authorization, doctor's certificate) • Monitor absenteeism and address reoccurring behavior • Duty to inquire / assist • Consider if any applicable statutory right to time off • Human Rights – Protected ground under the Human Rights Code • Employment Standards – For example, emergency leave

18. 6. Innocent Absenteeism - Human rights concerns Human Rights Concerns • Human rights law requires employers to inquire about the need for accommodation in cases of: • Disability • Family status • Sex (pregnancy) • Creed

19. 6. Innocent Absenteeism Responding to Non-Culpable Behavior • Assess employee needs • Provide counseling, assistance, accommodation if required • Continued monitoring • Non-disciplinary discharge – Frustration at point of "undue hardship" • Clearly excessive absences • Proven inability to attend work on a regular basis in the future • All reasonable accommodations have been considered

20. Questions?