Progressive Discipline

AuthorPaul Wearing
Progressive Discipline
What You Should Know
There is no legal principle requiring progressive discipline in every case,1
although an exception may arise in unionized workplaces, which are sub-
ject to collective agreements.
The law recognizes an employer’s right to impose reasonable discipline
short of termination of employment for less serious types of employee
misconduct.2 If there is no written contract term stipulating a penalty for
misconduct, like suspension without pay, a court may imply such a term
based on custom and usage or the presumed intention of the parties.3 An
imposed penalty will be assessed for its reasonablen ess and rehabilitative
quality. A suspension without pay for an indef‌inite period is neither rea-
sonable nor rehabilitative and will be assessed by the court as amounting
to constructive dismissal.4 If a suspension is made with pay, it is more
likely that a court will f‌ind that a constructive dismissal has not occurred
unless the suspension is for an indef‌inite period.5
Clear and concise policies setting expectations and rules for conduct
in the workplace and consequences for violations of those expectations
and rules must be publicized. This can be done in the terms of an em-
ployment contract or in an employee handbook, or the policies can be
posted in a manner that will cause them to come to the attention of all
employees. Policies must be disclosed to the prospective employee at
the time of making the job oer.

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