Employee Rights and Discipline Managing Human Resources Belcourt * Bohlander * Snell Copyright © 2008 by Nelson, a division of Thomson Canada Limited All rights reserved 5th Canadian edition PowerPoint Presentation by Monica Belcourt, York University and Charlie Cook, The University of West Alabama Objectives After studying this chapter, you should be able to: Explain statutory rights, contractual rights and due process Identify the job expectancy rights of employees Identify and explain the privacy rights of employees Explain the process of establishing disciplinary policies, including the proper implementation of organizational rules Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–2 Objectives (cont’d) After studying this chapter, you should be able to: Discuss the meaning of discipline and how to investigate a disciplinary problem Differentiate between the two approaches to disciplinary action Identify the different types of alternative dispute resolution procedures Discuss the role of ethics in the management of human resources Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–3 Employee Rights and Privacy • Employee Rights  Guarantees fair treatment from employers, particularly regarding an employee’s right to privacy  Psychological contract—expectations of a fair exchange of employment obligations between an employee and employer Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–4 Employment Protection Rights • Statutory rights  Rights that derive from legislation • Contractual rights  Rights that derive from contracts • Due process  Employee rights to present his or her position during a disciplinary action Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–5 Wrongful Dismissal for Just Cause • The employer must document and prove serious misconduct or incompetence on the part of the employee Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–6 Tips to Avoid Wrongful Employment Termination Lawsuits • Terminate an employee only if there is an articulated reason • Set and follow termination rules and schedules • Document all performance problems • Be consistent with employees in similar situations Copyright © 2008 by Nelson, a division of Thomson Canada Ltd Figure 13.1 13–7 Constructive Dismissal • Changing an employee’s working conditions such that compensation, status or prestige is reduced Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–8 Job Expectancy Rights • Employees expect certain rights associated with fair and equitable employment, including:  Privacy  Substance abuse and drug testing  Just cause disciplinary and discharge procedures Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–9 Privacy Rights Employee Employee Privacy Privacy versus versus Employer Employer Obligations Obligations •• Substance SubstanceAbuse Abuseand andDrug Drug Testing Testing •• Searches Searchesand andElectronic Electronic Monitoring Monitoring •• Access Accessto toPersonnel PersonnelFiles Files •• E-mail E-mailand andVoice VoiceMail Mail •• Access Accessto toPersonal PersonalFiles Files •• Conduct ConductOutside Outsidethe the Workplace Workplace •• Genetic GeneticTesting Testing Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–10 Approaches to Discipline • Progressive Discipline  Application of corrective measures by increasing degrees Employees always know where they stand regarding offences  Employees know what improvement is expected of them  Employees understand what will happen next if improvement is not made  • Positive, or Non-punitive, Discipline  Discipline that focuses on the early correction of employee misconduct, with the employee taking total responsibility correcting the problem Copyright © 2008 byfor Nelson, a division of Thomson Canada Ltd 13–24 Positive Discipline Procedure Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–25 Disciplinary Action for Unsatisfactory Performance • Do clear and objective performance standards exist? • Has employee received proper orientation and training? • Is the unsatisfactory performance caused by conditions beyond employees’ control? • Has employee been given adequate warning and time to improve performance? • Are the other employees meeting performance standards? Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–26 Considerations When Discharging an Employee • What is the employee’s length of service? • What is the employee’s previous service record? • Did employee receive warning and lesser penalties, i.e., progressive discipline? • Did employer use every means possible to avoid the discharge? • Are there any evidences of prejudice or bias toward employee? Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–27 “Just Cause” Discharge Guidelines Did the organization forewarn the employee of the possible disciplinary consequences of his or her action? Were management’s requirements of the employee reasonable in relation to the orderly, efficient, and safe operation of the organization’s business? Did management, before discharging the employee, make a reasonable effort to establish that the employee’s performance was unsatisfactory? Was the organization’s investigation conducted in a fair and objective manner? Did the investigation produce sufficient evidence of proof of guilt as charged? Has management treated this employee under its rules, orders, and penalties as it has other employees in similar circumstances? Did the discharge fit the misconduct, considering the seriousness Copyright © 2008 by Nelson, a of the proven offense, the employee’s service record, and any mitigating circumstances? Figure 13.8 division of Thomson Canada Ltd 13–28 Informing the Employee • Conducting a Discharge Meeting:  Come to the point within the first two or three minutes, and list in a logical order all reasons for the termination  Be straightforward and firm, yet tactful, and remain resolute in your decision  Make the discussion private, businesslike, and fairly brief  Don’t mix the good with the bad Trying to sugarcoat the problem sends a mixed message to the employee  Avoid making accusations against the employee and injecting personal feelings into the discussion  Avoid bringing up any personality differences between you and the employee  Provide any information concerning severance pay and the status of benefits and coverage  Explain handleaemployment inquiries from future Copyright © how 2008you bywill Nelson, employers division of Thomson Canada Ltd 13–29 Due Process • An employee’s right to present his or her position during a disciplinary action  To know job expectations and the consequences of not fulfilling those expectations  To consistent and predictable management action for the violation of rules  To fair discipline based on facts, to question those facts, and the right to present a defence  To appeal disciplinary action  The right to progressive discipline Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–30 Alternative Dispute Resolution • “ADR”  The term applied to different types of employee complaint or dispute-resolution procedures • ADR Procedures  Step-Review Systems  Peer-Review Systems  Open-Door Policy  Ombudsperson System  Mediation  Arbitration Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–31 Alternative Dispute Resolution Procedures • Step-Review System  System for reviewing employee complaints and disputes by successively higher levels of management • Peer-Review System  A group composed of equal numbers of employee representatives and management appointees  Functions as a jury since its members weigh evidence, consider arguments, and after deliberation, vote independently to render a final decision Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–32 Conventional Step-Review Appeal Procedure Copyright © 2008 by Nelson, a division of Thomson Canada Ltd Figure 13.9 13–33 Additional ADR Procedures • Open-Door Policy  A policy of settling grievances that identifies various levels of management above the immediate supervisor for employee contact • Ombudsperson  A designated individual from whom employees may seek counsel for the resolution of their complaints  They not have power to overrule the decision made by an employee’s supervisor, but they should be able to appeal the decision up the line if they believe an employee is not being treated fairly Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–34 Third-party Dispute Resolution • Mediation  The use of an impartial neutral to reach a compromise decision in employment disputes • Mediator  A third party in an employment dispute who meets with one party and then the other in order to suggest compromise solutions or to recommend concessions from each side that will lead to an agreement Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–35 Third-party Dispute Resolution (cont’d) • Arbitration  The use of an impartial neutral party as decision maker to resolve an employment labour dispute by imposing a binding final decision on all parties involved in the dispute • Arbitrator  Third-party neutral who resolves a labour dispute by issuing a final decision in the disagreement Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13–36 Managerial Ethics in Employee Relations • Ethics  The set of standards of conduct and moral judgments that help to determine right and wrong behaviour  Provides cultural guidelines—organizational or societal—that help decide between proper or improper conduct • Code of Ethics  A written set of standards of conduct (ethical values) that governs relations with employees and the public  Provides a basis for the organization, and individual managers, Copyright © 2008 to byevaluate Nelson, atheir plans and actions division of Thomson Canada Ltd 13–37 Key Terms • alternative dispute resolution (ADR) • constructive dismissal • contractual rights • discipline • due process • employee rights • ethics • hot-stove rule • mediation Copyright © 2008 by Nelson, a division of Thomson Canada Ltd • • • • • • • • • • • • mediator negligence ombudsperson open-door policy peer-review system positive, or nonpunitive, discipline progressive discipline psychological contract psychological contract statutory rights step-review system whistle-blowing 13–38 [...]... irrelevant, outdated, or inaccurate information Ltd 13 13 Figure 13. 4 Employee Privacy Issues • Camera-Equipped Phones  Generally banned from the workplace • Employee Conduct outside the Workplace  Organizations that want to discipline employees for off-duty misconduct must establish a clear relationship between the misconduct and its negative effect on other employees or the organization • Genetic Testing... division of Thomson Canada Ltd 13 14 A Disciplinary Model Organization Organization discipline discipline policy policy Definition Definitionof of discipline discipline Violation Violationof of organizational organizational rules rules Investigation Investigation of ofemployee employee offence offence Disciplinary Disciplinary interview interview Progressive Progressive discipline discipline Due Dueprocess... stand regarding offences  Employees know what improvement is expected of them  Employees understand what will happen next if improvement is not made  • Positive, or Non-punitive, Discipline  Discipline that focuses on the early correction of employee misconduct, with the employee taking total responsibility correcting the problem Copyright © 2008 byfor Nelson, a division of Thomson Canada Ltd 13 24... 13 24 Positive Discipline Procedure Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13 25 Disciplinary Action for Unsatisfactory Performance • Do clear and objective performance standards exist? • Has employee received proper orientation and training? • Is the unsatisfactory performance caused by conditions beyond employees’ control? • Has employee been given adequate warning and time to... time to improve performance? • Are the other employees meeting performance standards? Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13 26 Considerations When Discharging an Employee • What is the employee s length of service? • What is the employee s previous service record? • Did employee receive warning and lesser penalties, i.e., progressive discipline? • Did employer use every means... and fairly brief  Don’t mix the good with the bad Trying to sugarcoat the problem sends a mixed message to the employee  Avoid making accusations against the employee and injecting personal feelings into the discussion  Avoid bringing up any personality differences between you and the employee  Provide any information concerning severance pay and the status of benefits and coverage  Explain handleaemployment... Nelson, a of the proven offense, the employee s service record, and any mitigating circumstances? Figure 13. 8 division of Thomson Canada Ltd 13 28 Informing the Employee • Conducting a Discharge Meeting:  Come to the point within the first two or three minutes, and list in a logical order all reasons for the termination  Be straightforward and firm, yet tactful, and remain resolute in your decision... Consequences of misconduct on employee and/ or work unit • Prior discussions with employee about conduct • Disciplinary action to be taken and specific improvement expected • Consequences for employee if behaviour is not changed and follow-up date • Reaction of employee to supervisor’s efforts Copyright 2008 by Nelson, a • Names © of witnesses to incident division of Thomson Canada Ltd 13 22 The Investigative... performance and behavior standards of the job  Avoid getting into personalities or areas unrelated to job performance  Give the employee must be given a full opportunity to explain his or her side of the issue Copyright © 2008 by Nelson, a division of Thomson Canada Ltd 13 23 Approaches to Discipline • Progressive Discipline  Application of corrective measures by increasing degrees Employees always... charged? 2 Did the employee know he or she was doing something wrong? 3 Is the employee guilty? 4 Are there extenuating circumstances? 5 Has the rule been uniformly enforced? 6 Is the offence related to the workplace? 7 What is the employee s past work record? Copyright © 2008 by Nelson, a division of Thomson Canada Ltd Figure 13. 7 13 21 Documentation of Employee Misconduct • Date, time, and location of