|
The nature of discipline is corrective, rather than punitive, and its purpose
is to motivate employees to accept those rules and standards of conduct which are
desirable or necessary to achieve the goals and objectives of the organization.
These guidelines are intended to assist organizations in the core
public administration in the application of discipline, in the development of
departmental codes of discipline and in the conduct of disciplinary investigations
and hearings.
Paragraph 12(1)(c)
of the Financial Administration Act (FAA) authorizes every deputy head in
the core public administration to establish standards of discipline and set
penalties, including termination of employment, suspension, demotion to a position
at a lower maximum rate of pay and financial penalties that may be applied for
breaches of discipline or misconduct. Subsection 12(3)
provides, among other things, that disciplinary action shall be for cause. Finally
subsection 12.2(1)
permits delegation of these authorities. However, the exercise of these
authorities is subject to the provisions of subsection 11.1(1)
of the FAA which states that, in the exercise of its human management
responsibilities, the Treasury Board may establish policies or issue directives
respecting the exercise of the powers granted by the Act to deputy heads in the
core public administration.
These guidelines apply to the core public administration, for which the
Treasury Board is the employer.
In increasing severity, disciplinary measures are as follows:
- oral reprimand;
- written reprimand;
- suspension or financial penalty;
- demotion; and
- termination of employment.
Oral reprimand (réprimande verbale) — is a verbal disciplinary measure that
includes a statement outlining to the employee the nature of the misconduct, the
corrective action required, and the consequences should it not be corrected. No
record of this measure is to be placed on the employee's personnel file.
Written reprimand (réprimande écrite) — is a formal written warning that
misconduct has occurred. It should outline the nature of the misconduct, the
corrective action required, and the consequences should it not be corrected. If
more severe disciplinary action should later become necessary, the record of the
reprimand(s) on the personnel file will demonstrate that the employee was made
aware of the consequences of further misconduct.
Suspension (suspension) — is the temporary removal of the employee from the
place of work without pay as a consequence of misconduct. The notice of suspension
should include the nature of the misconduct, the corrective action required and
the consequences should it not be corrected.
A suspension may be imposed in the following situations:
- pending investigation of certain suspected misconduct when the presence of the
employee at work cannot be tolerated or could undermine or impede the
investigation (see Annex 2 for indefinite suspension criteria as enunciated in
Larson PSSRB file 2002 PSSRB 9); or
- to impose a definitive disciplinary measure for an act of misconduct.
Financial penalty (sanction pécuniaire) — is an alternative to a suspension,
where a financial penalty is considered preferable for operational or economic
reasons. Financial penalties are appropriate in situations involving mass unlawful
withdrawal of services, continuous shift operations, ships at sea, and isolated
posts where it may be difficult to schedule suspensions without the use of
replacements and overtime. It may also be used to impose a definitive disciplinary
measure for an act of misconduct. It should outline the nature of the misconduct,
the corrective measure required, and the consequences should it not be corrected.
Demotion (rétrogradation) — means an action taken by the employer to appoint
an employee to a position at a lower maximum rate of pay. Demotion is an
alternative to a disciplinary termination and should be used when the manager is
of the opinion that, despite the misconduct, the employee is still suitable for
continued employment albeit in a position at a lower maximum rate of pay. Demotion
could be used in situations where a manager is found guilty of harassment and
is moved to a position with no managerial responsibilities.
Disciplinary termination (licenciement pour manquement à la
discipline) — is
the separation of an employee from the core public administration for misconduct.
It may be used after a series of acts of misconduct when a "culminating
incident" has occurred, or for a single act of serious misconduct.
Termination is the most severe disciplinary measure, and the decision to proceed
should be taken only after careful consideration and when it is determined that
the employee is no longer suitable for continued employment by reason of
misconduct.
Management is responsible and accountable for the imposition of discipline. The level of management involved should be commensurate with the severity of the disciplinary measure. Managers should review the guidance provided in Annex 1 and should also consult with their human resources and/or labour relations specialist at the earliest indication that misconduct may have occurred.
Employees are responsible at all times for conforming to established standards
of conduct, implicit or explicit, whether at the local, regional, departmental, or
national level. Employees are also responsible to adhere and respect the Values
and Ethics Code for the Public Service.
It is the responsibility of departments and agencies that develop codes of
discipline to do so based on sound managerial practices. When new codes of
discipline, or any significant amendments to an existing code are developed, a
draft copy must be forwarded to the Employer Representation Section of the
Treasury Board of Canada Secretariat for consultation prior to promulgation.
Copies of the final version are to be forwarded upon promulgation.
Consultation by departmental Human Resources Officers with the Employer
Representation Section of the Treasury Board of Canada Secretariat is required in
cases of:
- Terminations and demotions
- Interpretation / application of cases involving important jurisprudential
issues (e.g., discrimination under the CHRA, the interpretation of new
legislation such as the PSMA, etc.)
- High profile cases - any potential disciplinary action that may attract media
attention e.g. senior officials, whistleblowers, etc.
The Employer Representation Group, is responsible for:
- reviewing departmental codes of discipline; and
- providing advice on disciplinary matters.
A person who is disciplined as described in these guidelines, is entitled to
present an individual grievance at each of the levels in the grievance process, up
to and including the final level, pursuant to the Regulations
and Rules of Procedure of the Public Service Labour Relations Board
(PSLRB) and the provisions of any applicable collective agreement. Individual
grievances may also be subject to third-party adjudication, pursuant to paragraph
209(1)(b) of the Public
Service Labour Relations Act (PSLRA).
Financial
Administration Act
Public Service Labour
Relations Act
Public
Service Labour Relations Board Regulations and Rules of Procedure
Public
Service Terms and Conditions of Employment Regulations
Collective
agreements
These guidelines cancel and replace the Treasury Board Guidelines for Discipline, published in 2002.
Enquiries concerning these guidelines should be addressed to:
Employer Representation Group
Labour Relations Operations Sector
Treasury Board of Canada, Secretariat
Annex 1 – Guidance for
Managers with Respect to Discipline
1. Collective
agreements
Some collective agreements contain provisions pertaining to discipline and
departments must respect these applicable terms and conditions.
2. Steps in determining
misconduct and disciplinary action
- Determine
whether or not rules and orders have been applied fairly and consistently.
- Conduct a
fair and objective investigation.
- Establish
whether or not the employee has been accorded due administrative process.
(See investigations below.)
- Determine
whether or not a breach of conduct has occurred.
- Determine
the appropriate disciplinary action to be taken. The action being considered
should take into account the mitigating and/or aggravating circumstances.
3. Investigations and interviews
- An investigation into alleged
wrongdoing should be conducted as close as possible to the relevant incident.
- The investigation should be
conducted fairly and objectively. It should also consider and provide the
following:
- background information leading to the relevant incident;
- input from the witness or witnesses;
- the employee's response to the allegation(s);
- an analysis of the facts; and
- the conclusion as to whether or not misconduct has taken place.
- As part of the investigation and
in the context of administrative due process, employees have a right to be
confronted with the alleged wrongdoing and to have an opportunity to respond.
Interviews with employees normally take place in private. Managers should consult
the applicable collective agreement and advise the employee of the provisions with
respect to the attendance of a bargaining agent or other representative at the
interview. Management may also choose to be accompanied by a human resources
specialist or another management colleague during the interview. Documentation of
the outcome of the interview, including the investigation report, if there is one, must be retained and must be made available to the
employee.
4. Determining appropriate disciplinary action
- Each incident of alleged
misconduct must be considered on the basis of individual merit. Based on the
circumstances, in management's opinion, what corrective measures would be
necessary to correct the undesirable behaviour? The application of disciplinary
measures should not be punitive in nature. In the event that previous efforts to
correct behaviour have not achieved the desired results, or if the misconduct of
the employee is deemed so onerous that continued employment is not considered
feasible, termination action may be the only meaningful appropriate measure.
- Mitigating circumstances, such as the employee's length of service, past record,
the seriousness of the offence, and the unique circumstances of each situation,
may require variations in management's response to seemingly similar offences; but
whatever the response, it should be made evident to all employees that
disciplinary actions depend upon the nature of the offence, the attendant
circumstances, as well as any mitigating factors. Consultation with your labour
relations advisors may also be appropriate, and a review of applicable prior
jurisprudence is advisable.
- Disciplinary action, however, should not be delayed; a lengthy time gap between
the breach of discipline and management's response tends to dissociate the offence
from the corrective action. Such delay may also be considered as condoning and may
weaken management's case at adjudication.
5. Flexibility and application of discipline
Rigid equation of offences and disciplinary measures should be avoided.
Disciplinary action of a progressively more serious nature is warranted when there
are repeated incidents of misconduct.
6. Meeting at which a disciplinary decision is rendered
Once a decision on disciplinary action is made, an employee shall be informed
of this decision at a disciplinary meeting as soon as practicable. Managers should
consult the applicable collective agreement and advise the employee of the
provisions with respect to the attendance of a bargaining agent or other
representative at the meeting. An employee should be informed of the following
during a disciplinary meeting:
- disciplinary measure(s) to be taken;
- the reasons why the disciplinary
measure was chosen;
- mitigating circumstances and contributing factors that were taken into
consideration in reaching this decision;
- in cases involving suspension,
financial penalty, demotion and termination, the manner and time frame in which
the disciplinary measure(s) will be administered; and
- the right to present an
individual grievance. (See Redress Procedure)
Applicable collective agreements may also require management to inform local
union representatives when taking specific forms of disciplinary action. At the
disciplinary hearing, an employee should be provided with a written copy of the disciplinary action to be taken.
7. Documentation
A written record of the disciplinary action taken is to be placed on an employee's personnel file. With respect to discipline, only documentation that the employee is aware of can be placed on his or her personnel file. Failure on the part of an employee to acknowledge disciplinary documentation being placed on file may be substituted by a notation to that effect. Removal of any document or written statement related to a disciplinary action, which may have been placed on the personnel file of an employee, shall be destroyed in accordance with the applicable provision of the collective agreement. Documents that have been removed from the employee's personnel file cannot be considered in subsequent applications of disciplinary action.
(also known as the Larson criteria, PSSRB file 2002 PSSRB 9)
- The issue in a grievance of
this nature is not whether the grievor is guilty or innocent, but rather whether
the presence of the grievor as an employee of the organization can be considered
to present a reasonably serious and immediate risk to the legitimate concerns of
the employer.
- The onus is on the
[employer] to satisfy the board of the existence of such a risk and the simple
fact that a criminal charge has been laid is not sufficient to comply with that
onus. The [employer] must also establish that the nature of the charge is such as
to be potentially harmful or detrimental or adverse in effect to the [employer's]
reputation or product or that it will render the employee unable properly to
perform his duties or that it will have a harmful effect on other employees of the
company or its customers or will harm the general reputation of the [employer].
- The [employer] must show
that it did, in fact, investigate the criminal charge to the best of its abilities
in a genuine attempt to assess the risk of continued employment. The burden, in
this area, on the [employer] is significantly less in the case where the police
have investigated the matter and have acquired the evidence to lay the charge than
in the situation where the [employer] has initiated proceedings.
- There is further onus on the
[employer] to show that it has taken reasonable steps to ascertain whether the
risk of continued employment might be mitigated through such techniques as closer
supervision or transfer to another position.
- There is a continued onus on
the part of the [employer] during the period of suspension to consider objectively
the possibility of reinstatement within a reasonable period of time following
suspension in light of new facts or circumstances which may come to the attention
of the [employer] during the course of the suspension. These matters, again, must
be evaluated in the light of the existence of a reasonable risk to the legitimate
interest of the [employer].
|
