Progressive Discipline

• Author: Paul Wearing
• Pages: 57-58

• 57

CHAPTER NINE

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.