Disciplinary penalties in the workplace must be applied progressively, i.e. lighter sanction should be applied in the case of a first offence, and graver sanctions reserved for repetitions.
General warnings are frequently used to signal to all employees that the employer intends to take action against forms of misconduct (e.g. absenteeism) that might have been condoned in the past.
Informal oral warnings are those given to individual employees for particular acts of misconduct. They are reminders that if the employee continues with the prohibited conduct, more serious action will follow. Although informal, such warnings represent the first stage of disciplinary action. The way in which employers issue and record warnings differs from employer to employer. Some record them formally on the employee’s personnel file, others not. It is, however, advisable to keep a proper record of all warnings. The purpose of warnings is corrective. Since oral warnings are informal in nature, no specific procedure need be followed before issuing the warning, unless otherwise specified in a collective agreement.
A written warning is a more formal act than an oral warning. Reducing a warning to writing enables the employer to prove that the warning was given if subsequent disciplinary action proves necessary against the employee. An employee is usually required to sign a written warning, and some employers also require a signature by a witness. By so doing, the employee does not admit guilt, but merely acknowledges receipt of the warning. An employee’s refusal to sign a written warning does not affect its validity.
The issuing of a written warning should be preceded by a proper inquiry, during which the employees concerned should be allowed to state their cases and produce witnesses, if necessary. It is also desirable that and employee faced with warnings be allowed to be represented by a fellow worker or union representative, if requested, while the penalty is being considered.
Final Written Warnings
A final written warning is the last warning an employee can expect before dismissal. Its purpose is to give employees a final chance to correct their behaviour. If an employee is given a number of ‘final’ warnings, other employees may begin to suspect that, no matter what how badly they behave, they will never be dismissed. By creating this impression, the employer creates a two-edged sword. First, its warnings become ineffectual. Secondly, an arbitrator may hold that the employer was not entitled to dismiss the employee because no meaningful final warning was given. Many disciplinary codes provide that written and final written warnings remain in force for a specific, usually six months.
An arbitrator has held that expired warnings may not be taken into account for purpose of imposing progressive discipline, but may indeed serve as evidence that the employee was aware of the rule. In appropriate circumstances employers are entitled to dismiss employees even if they are not on final warning.
Suspension may be of two kinds: it may be imposed either as a ‘holding operation’ pending disciplinary action, or as form of disciplinary penalty. The first type of suspension is not punitive in itself; preventive suspension is acceptable, provided the employer bona fide believes that such as action is necessary for good administration and the employer continues to pay the employee. An employer may suspend employees without pay only if they have contracted to that effect, either when the contract was first entered into or if a collective agreement provides for such penalty, or when the employee is faced with dismissal and agrees to unpaid suspension as an alternative penalty.
The labour courts accept suspension without pay as an appropriate penalty in ‘certain circumstances’; in fact, employers are required to consider whether suspension might in the circumstances be a more appropriate sanction than dismissal. While lawfully suspended, an employee remains an employee and as such is subject to the authority of the employee to report to the workplace at specific times.
It constitutes a unilateral variation of the employee’s contract of service. However, demotion is also considered an acceptable alternative to dismissal by the labour courts, especially where it is provided for in a disciplinary code. Like unfair suspension, unfair demotion also constitutes an arbitrable unfair labour practice.
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