Progressive Discipline for Safety Violations, Part 2:How to Create a Paper Trail

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Workers who commit safety infractions put themselves and other workers in danger and expose the company to liability under OHS laws and C-45. That’s why you need to enforce your company’s safety policies and practices. Progressive discipline is the key to effective enforcement. Last month, in Part 1 of this series, we explained how to apply the various stages of progressive discipline from warning to termination.

Let’s now focus on a critical element of the progressive discipline strategy: Documenting your actions. We’ll explain why documentation is so important. Next, we’ll tell you what documents you need to create. Finally, we’ll use a hypothetical case of a worker named Mike to show you how to create each of the documents in your paper trail.

The Importance of Documentation

When you discipline a worker, you should anticipate that your actions will be challenged in court or before an arbitrator. The odds of a challenge are especially great if the worker belongs to a union. To survive such challenges—and make discipline stick—you must be prepared to defend your decisions. To do that, you’ll need documentation that shows what you did and why.

Employers must keep detailed records like memos to files, written notices, notes summarizing conversations, etc., each time they apply progressive discipline against a worker. Disciplining a worker can be a tremendous ordeal for everybody involved. So it might be easy to put off the “paperwork” or overlook it altogether. But without documentation, you’re a sitting duck in court or at arbitration. If you try to go back and create the documentation after the fact, you’ll also be in deep trouble. “When it comes to documentation, you need to do it while the actions and memories are fresh,” explains a Toronto lawyer. “The longer you wait, the staler and less credible your case becomes,” she adds.

The Story of Mike

What kind of documentation should you create. Instead of explaining in the abstract, let’s use a hypothetical case to illustrate. The “star” of this case is Mike, a construction worker who has been with the company for five years and never been disciplined for anything. But as our story begins, Mike is about to shed his status as model employee and become a major headache to his supervisors.

Chapter 1: Mike Gets His First Warning

Mike’s supervisor spots Mike on a construction site without his hardhat on. The supervisor tells Mike to get his hardhat on. Mike complies immediately. Mike is the last guy the supervisor expects to find walking around a construction site bareheaded and dismisses the incident as an honest mistake not deserving of discipline. Mike probably “just spaced out,” he figures.

Three days later, the supervisor once more sees Mike working without his hardhat. So he decides to issue a warning before things get out of hand. Here’s an example of an appropriate warning. 

“Mike, you’re a good and reliable worker. But this morning I saw you near the hoist without a hardhat. You’ve been here long enough to know that it’s dangerous—not to mention against company policy—not to wear a hardhat on site at all times. So what’s the story?”

[Let Mike give his side of the story]

“Seeing that this is the second time in less than a week that I caught you without a hardhat, I’m going to give you a formal warning. Just wear your hardhat from now on, all right?”

After giving Mike the warning, the supervisor should write a memo like this for the files:

Memo To Files

From: Supervisor

Date: April 1, 2005

This afternoon I caught Mike Smith near the lift hoist without a hardhat on for the second time in less than a week. I gave Mike a verbal warning and reminded him that not wearing a hardhat is against company safety rules not to mention dangerous. Mike said he was sorry, explained that he “forgot” his hardhat wasn’t on when he came back from lunch and promised it wouldn’t happen again. Mike’s a good man and I’m sure he’ll take the warning seriously. I’d be surprised if there are any further problems.

Chapter 2: Mike Gets a Written Warning

Two weeks later, the supervisor spots Mike without his hardhat and demands an explanation. Mike gets defensive saying he took off his hardhat because it was making him “sweat too much.” The supervisor decides to give Mike a written warning like this:

April 18, 2005

Mike Smith

123 Main St.

Any City, USA 99999

Dear Mr. Smith:

This is an official warning under the ABC Construction progressive discipline policy. I am issuing it to you because of repeated violations of the ABC safety policy requirement that hardhats be worn at all times on worksites.

This is your second warning. On April 1, 2005, I orally warned you about not wearing your hardhat. You told me it was an honest mistake and wouldn’t happen again. But yesterday afternoon I caught you again without your hardhat on. This time your excuse was that you took off your hardhat because it was making you sweat. Let me remind you that being too hot is no excuse for not wearing a hardhat.

Your repeated failure to follow company safety rules is putting you in danger, setting a bad example for your co-workers and making the company vulnerable to OHS citations. I feel it necessary to warn you that I will not hesitate to take serious disciplinary measures against you, including suspension and possibly dismissal, if you continue not to wear your hardhat or commit other safety infractions.

Mike, you and I have worked together for five years. I respect you and consider you one of my most reliable men. Until recently, I never had to discipline you for anything. Now, suddenly, this whole hardhat thing is becoming a big problem. I want you to know that I still have confidence in you and to personally appeal to you to keep that hardhat on your head so we don’t have any further incidents.

Sincerely,

[Signed Phil Jones, Supervisor]

I have read and understood this letter: __________________________________________

Date: ___________________

[Signed Mike Smith]

Chapter 3: Mike Gets Suspended

Three weeks later, Mike gets caught without his hardhat on for the third time. The company decides to suspend him and sends him a letter like this:

May 7, 2005

Mike Smith

123 Main St.

Any Province, CA A2B 3C4

Dear Mr. Smith:

This is to notify that you have been suspended without pay for two days starting March 10. The reason for your suspension is repeated failure to follow ABC Construction safety rules, specifically Rule 12(a), which requires workers to wear hardhats on construction sites at all times. I regret having to take this action, but your continuing failure to heed warnings leaves me no choice.

Verbal Warning: On April 1, I issued you an oral warning for failing to wear your hardhat. You said it was a mistake and promised not to let it happen again.

Written Warning: On April 17, I caught you again without a hardhat on and sent you a written warning the next day in which I made it clear that further violations would result in more serious penalties, including a possible suspension.

Latest Incident: On May 5, you were not wearing your hardhat on the worksite. When I demanded that you put it on, you refused claiming it didn’t fit right and that it gave you “hat-head.”

ABC Construction can no longer tolerate your behavior and attitude. The ABC safe workplace rules are there to protect you and your fellow workers. Suspending you without pay is, the company feels, appropriate punishment for your continued failure to abide by those rules.

Please be advised that this is your final warning. ABC Construction is prepared to dismiss you immediately the next time you disobey the hardhat or other safety rule.

Sincerely,

[Signed Phil Jones, Supervisor]

Chapter 4: Mike Gets Fired

Alas, Mike’s story doesn’t have a happy ending. Two days after returning from his suspension, the supervisor spots Mike defiantly striding around the site without his hardhat on. A meeting is held and Mike is fired. The supervisor writes a memo like the following to summarize the results of the meeting:

Memorandum

Re: Dismissal of Mike Smith

Date: May 25, 2005

Yesterday, a meeting was held to determine whether to dismiss employee Mike Smith. The meeting was attended by Mr. Smith, John Johnson, a representative of Union Local 456, Bob White, HR Director of ABC Construction, Mary Lamb, a secretary and myself.

I opened the meeting by proposing the immediate dismissal of Mr. Smith based on his chronic failure to obey ABC Construction safety rules, specifically Section 12(a) which requires the wearing of hardhats by all personnel on construction sites at all times, despite repeated warnings and previous disciplinary actions. I then documented all previous incidents.

[Summarize the events leading up to and the issuing of the oral warning, written warning, and suspension.]

Immediate Cause for Dismissal.  I noted that on May 19, Mr. Smith returned to work after serving his two-day suspension. The next day, I saw Mr. Smith walking around the site without his helmet on. I thought maybe this was some kind of sick joke and went out for a cup of coffee. But when I came back, there was Mike as bareheaded as ever. I explained to the people in the meeting that it looked to me like Mike was waiting for me to notice him to deliberately provoke a confrontation. I didn’t want to take the bait but I felt no choice. Sure enough, when I asked Mike what he thought he was doing, I was hit by torrents of verbal abuse.

Mr. Smith’s Explanation. Mr. Johnson of the union spoke next on Mike’s behalf. He said there was no just cause for dismissing Mr. Smith. He didn’t deny that Mr. Smith had repeatedly refused to wear his hardhat but claimed that I and other company officials “were out to get” Mike. He claimed that lots of other workers didn’t wear their hardhats and never got disciplined. I refuted this by producing records showing that in the past 18 months, four other ABC Workers had received warnings for not wearing hardhats.

Result. Mr. White and I met in closed quarters to discuss Mr. Smith’s explanation. We both agreed that it was totally unsatisfactory and decided that dismissal was appropriate. We notified Messrs. Smith and Johnson of the decision. They didn’t indicate if they would file a grievance against ABC Construction. The meeting ended.

[Signed: Supervisor]

Phil Jones

Date: