There’s no point in having safety rules unless you’re prepared to discipline workers who disobey them. In fact, having a rule that you don’t enforce is in some ways worse than having no rule at all. But discipline is risky business, especially if the worker belongs to a union. Chances are, you’ll end up having to defend your action before an arbitrator or court.
Luckily, there’s a technique you can use to make punishments stick if they’re challenged later on. Better yet, this technique can help you straighten out wayward workers and avoid showdowns. The technique is called progressive discipline and this article will show you how to use it. There’s also a Model Progressive Discipline Policy that you can adapt on page 3. Next month, in Part 2, we’ll explain how to lay down a paper trail at each stage of the process when imposing progressive discipline on workers who commit safety infractions.
What Is Progressive Discipline?
Progressive discipline is a series of gradually sterner punishments. It usually starts with warnings for a first offense, mounts to suspensions and ultimately dismissal. At each stage you confront the worker, explain what he did wrong, impose the appropriate punishment and warn him to clean up his act.
Progressive discipline works best against workers who commit repeat offenses such as not wearing hardhats or safety glasses. It’s not appropriate for seriously dangerous safety violations that call for stronger and more immediate action even if they’re a first offense. Arbitrators and courts will generally allow you to dispense with the warnings and suspend or even dismiss a first offender if the potential consequences of the safety violation are serious enough and if you punish all similar offenses the same way, lawyers say.
By the same token, you need to consider “mitigating factors,” that is, circumstances calling for more lenient treatment like long service, lack of previous offenses, admission of wrongdoing and remorse. “Apply progressive discipline flexibly, not by the numbers,” advises Atlanta lawyer Charles Morgan. But also make sure your decisions are justifiable and consistent.
Setting the Stage
You must notify workers in advance that you use progressive discipline and explain the steps. Put a description of the system in the collective bargaining agreement or if workers aren’t in a union, in an employee manual.
You also need to keep records—memos, letters, notes from supervisors, photographs, etc.—each time you apply the policy and discipline a worker. This is especially important if the worker belongs to a union. Most collective bargaining agreements ban discipline without “just cause.” If the worker files a grievance, you’ll have to defend your actions at an arbitration hearing. You’ll be courting disaster if you try to reconstruct events before an arbitrator without written documentation to back you up, warns Washington, DC, lawyer Harold Engel. You’ll need a written record even if the worker isn’t in a union because you could get sued for discrimination or wrongful termination, Engel adds.
How to Impose Progressive Discipline
A basic progressive discipline policy provides for at least four levels of punishment: verbal warning, written warning, suspension and termination. But there’s no one way to do it and policies may vary depending on the company and collective bargaining agreement. For example, the penalty for a first offense may be counseling instead of a warning; or, there may be an intermediate penalty like demotion between suspension and termination.
For simplicity’s sake, this article will focus on the plain vanilla four-level policy. Here’s how to impose each level of punishment.
Step 1: Verbal Warning
Workers who commit safety violations should get at least one verbal warning. A verbal warning is more than just an informal “watch-your-step.” You need to deliberately tell the worker that you’re providing a verbal warning under the progressive discipline policy, the lawyers say. You also need to:
- Explain specifically what the worker did or didn’t do and why it’s a problem.
- Ask for an explanation. Make sure the offense isn’t the result of a misunderstanding. For example, the worker may not have been trained how to use the equipment properly and the warning should be directed to the supervisor. Lack of communication can lead to precisely what you want to prevent—a grievance. And getting the worker’s side of the story will also help you prepare for a hearing in case a grievance is filed.
- Warn the worker not to do it again. “Don’t be hostile when issuing warnings,” advises Engel. “There’s no need to antagonize the worker, especially at this stage when you don’t know if you’re facing a chronic problem or an isolated incident.”
- Write a memo describing what you said and the worker’s explanation. Give a copy to the worker and the union and keep another copy in your files.
Step 2: Written Warning
If the worker commits another safety violation, issue a written warning.
- Remind the worker of previous warnings and briefly describe the circumstances.
- Say that you’re writing this letter because of failure to heed the warning.
- Explain what the worker did wrong.
- Warn of further discipline if the problem continues.
Ask the worker to sign the warning to acknowledge receipt and understanding of the warning. Keep a copy of the signed warning in your files and give a copy to the worker and the union.
Step 3: Suspension
When and if the worker violates another safety rule, send a formal suspension letter.
- Summarize the previous incidents.
- Say how many days you’re suspending the worker without pay.
- Make it clear that this is the final warning and that further misconduct may result in dismissal.
Send the letter to the worker and the union via certified mail, return-receipt requested. Keep a copy in the files.
Step 4: Dismissal
If the problem continues, be prepared for the ultimate stage of progressive discipline: dismissal. Tell the worker you want to hold a formal meeting to discuss dismissal. The worker can then decide whether to have a union representative attend.
At the meeting, go over all previous incidents and disciplinary actions. Say that the problem persists and describe the immediate cause of dismissal. Give the worker and/or representative a chance to respond. If you’re dissatisfied with the explanation, let the worker know he’s dismissed.
Take careful notes of everything that happens at the meeting, urges Morgan. Make sure at least one member of management attends as a witness. When the meeting ends write a final memo for the files summarizing what took place including your case and the worker’s defense. Don’t send the worker a letter listing your reasons for dismissal (unless you’re required to under the collective bargaining agreement), cautions Morgan. “Setting down all your reasons in writing might box you in at an arbitration hearing or court case,” he explains.
Harold J. Engel, Esq: Reed Smith LLP, 1301 K St., NW, Ste. 1100, East Tower, Washington, DC 20005.
Charles H. Morgan, Esq.: Alston & Bird, LLP, 1201 West Peachtree St., Atlanta, GA 30309-3424.
Get Right to Discipline Workers for Safety Infractions
Here’s a model policy establishing your right to impose progressive discipline on workers who commit safety infractions. It lays down four levels of discipline: verbal warning, written warning, suspension and termination.
Caveat: Remember that no one policy is appropriate for all employers and we’re not suggesting you adopt this or any other off-the-shelf policy word for word. But you can show this model to your lawyer and use it as a basis for formulating your own policy taking into account the laws of your province, the terms of your collective bargaining agreement (if your workers are unionized) and other circumstances peculiar to your company.
Progressive Discipline Policy
1. General Policy. Employees who violate ABC Company and site safety rules and procedures and/or [province name] Occupational Health and Safety laws, regulations and rulings shall be subject to discipline in accordance with the following progressive discipline policy.
2. Verbal Warnings. Employees who commit a first offense will receive one verbal warning. Upon receiving a verbal warning, the employee will be given an explanation of the infraction and corrective action required, an opportunity to explain and notification that further offenses will result in more serious penalties. A note stating that the verbal warning was given listing the time, date and reason will be kept in the employee’s personnel file.
3. Written Warnings. Second offenses will result in a written warning which will be recorded on the ABC Company disciplinary log. A copy of the warning will be sent to the employee, the ABC Company head office, the union and the OHS officer in charge of the site and be kept in the employee’s personnel file.
4. Suspensions. Third offenses will result in suspension for a period considered appropriate under the circumstances. A copy of the suspension notice will be sent to the employee, ABC Company head office, the union and the OHS officer in charge of the site and kept in the employee’s personnel file.
5. Termination. Fourth offenses will result in immediate termination. The supervisor responsible for the employee will be informed immediately and he/she will remove the employee from the site. A copy of the termination notice will be sent to the employee, ABC head office, the union and OHS officer in charge. In addition, the employee shall be given an opportunity to contest the dismissal at a hearing as required by the collective bargaining agreement.
Serious Offenses. In the event employees engage in severe offenses of a dangerous nature, ABC Company may impose more serious penalties up to and including immediate termination without following the sequence provided under this progressive discipline policy. For example, employees who engage in workplace violence or use alcohol or illegal drugs during their designated shifts may be subject to immediate termination without warning or suspension even if this is their first offense.