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Guidelines for Discipline

Effective Date: April 1^st, 2005.

Table of Contents

Purpose

Purpose

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.

Authority

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.

Application

These guidelines apply to the core public administration, for which the Treasury Board is the employer.

Disciplinary Action

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.

Responsibilities

Management

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

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.

Departments and Agencies

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.

Treasury Board of Canada Secretariat

The Employer Representation Group, is responsible for:

• reviewing departmental codes of discipline; and
• providing advice on disciplinary matters.

Redress Procedure

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).

References

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

Cancellation/Replacement

These guidelines cancel and replace the Treasury Board Guidelines for Discipline, published in 2002.

Enquiries

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

1. Determine whether or not rules and orders have been applied fairly and consistently.
2. Conduct a fair and objective investigation.
3. Establish whether or not the employee has been accorded due administrative process. (See investigations below.)
4. Determine whether or not a breach of conduct has occurred.
5. 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

1. An investigation into alleged wrongdoing should be conducted as close as possible to the relevant incident.
2. 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.

3. 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

1. 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.
2. 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.
3. 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:

1. disciplinary measure(s) to be taken;
2. the reasons why the disciplinary measure was chosen;
3. mitigating circumstances and contributing factors that were taken into consideration in reaching this decision;
4. in cases involving suspension, financial penalty, demotion and termination, the manner and time frame in which the disciplinary measure(s) will be administered; and
5. 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.

Annex 2 – Indefinite Suspension Criteria to Consider

(also known as the Larson criteria, PSSRB file 2002 PSSRB 9)

1. 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.
2. 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].
3. 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.
4. 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.
5. 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].

Date Modified: 2005-04-01