Employee discipline is a delicate balancing act. On one hand, employers need to maintain workplace standards and ensure productivity. On the other, employees have rights protected under employment laws. In Alberta, navigating this balance requires a thorough understanding of the law, a commitment to fairness, and meticulous documentation.

Understanding Alberta’s Employment Laws

Alberta’s employment laws, primarily the Employment Standards Code and common law principles, govern the employer-employee relationship and dictate the parameters within which employers can discipline employees.

The Employment Standards Code

The Employment Standards Code sets out minimum standards regarding wages, work hours, leaves, and termination. While it doesn’t explicitly detail disciplinary procedures, it impacts the process by defining what constitutes just cause for termination and outlining notice requirements.

Common Law

Common law, developed through court decisions, plays a crucial role. It establishes the concept of “just cause” for dismissal and the employer’s duty to provide reasonable notice or pay in lieu of notice for termination without just cause. It also highlights the employer’s obligation to act in good faith and the employee’s duty of fidelity.

Establishing Clear Workplace Policies

A well-drafted employee handbook or policy manual is crucial for setting clear expectations and providing a framework for disciplinary action. Key sections of a comprehensive employee handbook include:

• Performance Standards that clearly define performance expectations, including productivity targets, quality standards, and attendance requirements.
• Code of Conduct outlining acceptable workplace behaviour, including policies on harassment, discrimination, substance abuse, and insubordination.
• Disciplinary Procedures describing the progressive discipline process and the range of disciplinary actions that may be taken.

Employers should ensure employees acknowledge receipt and understanding of the handbook or policy manual in writing.

Defining Poor Performance and Disobedience

Before initiating disciplinary action, it’s essential to define what constitutes poor performance or disobedience:

• Poor Performance is a failure to meet reasonable performance standards, a decline in productivity, or a consistent inability to perform assigned tasks. Performance standards should be clearly communicated and objectively measurable whenever possible.
• Disobedience (sometimes called insubordination) involves deliberately refusing to follow legitimate and reasonable employer instructions or violating workplace policies. Disobedience can range from minor infractions to serious misconduct.

The Importance of Progressive Discipline

Alberta courts generally favour a progressive discipline approach. This means employers should escalate disciplinary measures gradually, providing employees with opportunities to improve. This also can help support an eventual dismissal for cause, if necessary, as it shows the employer made all attempts possible to help the employee improve their performance and avoid termination.

Verbal Warning

The initial step should be a private verbal warning, clearly outlining the performance or behavioural concerns and expectations for improvement. Document the date, time, and content of the warning.

Written Warning

If the issue persists, a written warning should be issued. This document should detail the specific concerns, the employee’s past performance or behaviour, the steps taken to address the issue, and the consequences of further infractions.

Performance Improvement Plan (PIP)

A performance improvement plan (PIP) should be implemented for performance-related issues. This plan should include specific, measurable, achievable, relevant, and time-bound (SMART) goals, along with resources and support to help the employee improve. Regularly scheduled meetings should be held to monitor progress.

PIPs must be created with the Alberta Human Rights Act in mind. Employees who meet a protected ground (such as disability) may require special accommodation. Failure to accommodate can constitute discrimination and leave the employer liable for a human rights violation.

Suspension

In cases of more serious misconduct, a suspension without pay may be warranted. The suspension should be for a reasonable period and clearly communicated in writing.

Termination

Termination should be considered the last resort, reserved for cases of serious misconduct or persistent poor performance despite progressive discipline.

Addressing Specific Employee Issues

When addressing employee-related issues in the workplace, employers must ensure all employees are treated fairly and consistently, regardless of their position or background. Disciplinary decisions should be based on objective evidence and avoid personal biases. Employers should also act with transparency, respect, and discretion when handling employee discipline.

While each case is unique, some general best practices for specific employee issues are set out below.

Insubordination

Insubordination involves a deliberate refusal to follow legitimate and reasonable instructions. The severity of the insubordination will determine the appropriate disciplinary action. For example, a single instance of minor insubordination may warrant a verbal warning, while repeated or serious insubordination may justify suspension or termination.

Attendance Issues

Employers should have clear attendance policies, including procedures for reporting absences and tardiness. Progressive discipline should be used to address attendance issues, starting with verbal warnings and escalating to written warnings and potential termination for persistent absenteeism.

Performance Deficiencies

Employers should focus on providing constructive feedback and support when dealing with performance deficiencies. They should also implement a performance improvement plan (PIP) to help the employee improve. If the employee fails to meet the goals outlined in the PIP, further disciplinary action, including termination, may be necessary.

Social Media Misconduct

Employees’ social media activity can sometimes impact the workplace. Employers should have clear policies regarding social media use, particularly regarding posts that could damage the company’s reputation or violate workplace policies. Depending on the severity of the offence, disciplinary action may be warranted for social media misconduct.

Conducting Thorough Workplace Investigations

Employers must conduct a thorough and impartial investigation before taking disciplinary action, particularly for serious misconduct. Investigation steps include:

1. Gathering Evidence: Collect all relevant evidence, including witness statements, documents, and electronic records.
2. Interview the Employee: Provide the employee an opportunity to explain their perspective.
3. Maintain Confidentiality: Protect the confidentiality of the investigation and the privacy of all parties involved.
4. Document the Investigation: Keep detailed records of the investigation process, including interview notes, evidence collected, and conclusions reached.

Just Cause for Termination in Alberta

The concept of “just cause” represents the most severe form of termination, wherein an employer is absolved of the obligation to provide any form of notice or severance pay. This exemption, however, is not granted lightly. Achieving a termination based on just cause requires the employer to meet a high threshold, one that courts scrutinize meticulously. It signifies that the employee’s actions have fundamentally breached the employment contract, rendering the continuation of the relationship untenable. Failure to adequately justify a just cause termination can leave the employer liable for wrongful dismissal.

Some grounds for a “just cause” termination are set out below.

Serious Misconduct

Egregious acts that demonstrate a profound disregard for the employer’s interests and the integrity of the workplace. Examples of such misconduct include (but are not limited to) theft, fraud, violence, and gross insubordination.

Persistent Poor Performance

Consistent and prolonged failure on the part of the employee to meet reasonable and clearly communicated performance standards. This is not a matter of isolated incidents or minor shortcomings. Instead, it necessitates a pattern of underperformance that persists despite the employer’s provision of progressive discipline, including warnings, performance improvement plans, and opportunities for remediation.

Fundamental Breach of Contract

Significant violation of the terms of the employment contract that fundamentally undermines the employment relationship. Such breaches can include, for example, divulging confidential information, engaging in undisclosed conflicts of interest, or violating non-compete agreements.

Termination Without Just Cause

In contrast to termination for just cause, termination “without just cause” occurs when an employer ends the employment relationship for reasons that do not meet the stringent criteria outlined above. In such cases, the employer is legally obligated to provide the employee with reasonable notice of termination or pay in lieu of notice. Considerations related to notice periods are set out below.

Reasonable Notice

The length of reasonable notice depends on factors such as the employee’s length of service, age, position, and the availability of similar employment.

Pay in Lieu of Notice

Instead of providing actual notice, employers may opt to provide a lump-sum payment equivalent to the employee’s salary and benefits for the duration of the reasonable notice period. This option provides immediate financial compensation to the employee and allows for a clean break in the employment relationship.

Employment Standards Code Minimum Notice Periods

The Employment Standards Code (ESC) sets out minimum notice periods that employers must adhere to. However, it is crucial to understand that these are minimum standards and common law principles often dictate more extended notice periods. Courts frequently award notice periods that exceed the ESC minimums, particularly in cases involving long-service employees or those in senior positions. Therefore, while the ESC provides a baseline, it should not be considered the definitive measure of reasonable notice.

The Importance of Documentation of Employee Issues

Meticulous documentation is essential for defending any disciplinary action. Employers should maintain detailed records of all disciplinary actions, including verbal warnings, written warnings, performance improvement plans, investigation reports, and termination letters. Performance issues should be carefully documented by keeping records of performance reviews, feedback sessions, and notes of any related issues. Incidents of misconduct should also be recorded, including dates, times, witnesses, and relevant evidence.

Getz Collins and Associates: Providing Comprehensive Employee Discipline Advice to Calgary & Strathmore Employers

At Getz Collins and Associates, our team of knowledgeable employment lawyers help Alberta employers navigate the complexities of employee discipline and create a fair, productive workplace. We also advocate for employees facing unfair discipline and protect their rights. Our robust advocacy skills and years of experience empower us to deliver top-tier client service.

Based in Calgary and Strathmore, Getz Collins and Associates proudly serves clients across the province, including Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, Hussar, and all surrounding areas. To schedule a consultation on your employment law matter, please contact us online or call 587-391-5600.