Guide to Managing Human Resources

Chapter 22: Taking Disciplinary Action

Summary
Guiding Principles
Seven Tests of Just Cause
Disciplinary Alternatives
Other Resources
Sample Written Warning Letter

Summary

All employees are expected to meet performance standards and behave appropriately in the workplace. Disciplinary or corrective action is a process of communicating with the employee to improve unacceptable behavior or performance. You may take disciplinary action when other methods such as coaching and performance appraisal have not been successful. (See Chapter 7, Performance Management.) In cases of serious misconduct, you may choose to proceed straight to disciplinary action. Reviewing the Seven Tests of Just Cause (see next page) before taking disciplinary action will help you determine whether discipline is the best approach to problem-solving in a particular situation.

Guiding Principles

In carrying out disciplinary action be sure to:

Build trust and maintain a professional manner by keeping the disciplinary process confidential between you and the employee
Make a careful diagnosis of the problem to determine whether disciplinary action is appropriate
Provide specific examples of performance discrepancies or work rule violations so the employee fully understands what needs correction
Allow the employee ample opportunity to explain so that you have all the facts
Make sure discipline is the appropriate tool. Would coaching or performance appraisal be sufficient to get the employee's attention?
When you take disciplinary action, make sure the punishment fits the crime
Help the employee improve performance by providing specific recommendations and requirements
Communicate clearly so the employee understands the consequences if performance or conduct does not improve

Seven Tests of Just Cause

The University's personnel policies and collective bargaining agreements refer to disciplinary or corrective action as a consequence of an employee's misconduct or failure to perform satisfactorily. They do not provide a definition of just or proper cause for taking such action. Over the years, the opinions of arbitrators in discipline cases have established a set of guidelines or criteria to be applied to the facts of each case, commonly known as the Seven Tests of Just Cause.

1. Reasonable Rule or Work Order. Is the rule or order reasonably related to the orderly, efficient, and safe operation of the business?

Is the rule or instruction straightforward and stated in language that is easy to understand?
Have you been consistent and unbiased in applying the rule or standard? Is it applied consistently throughout your department?
What is your department's discipline record for violation of this rule or standard?

2. Notice. Did the employee receive adequate notice of the work rule or performance standard and the possible consequences of failure to comply?

Is the violated work rule or performance standard published? Is it up to date and relevant to the business needs of your unit?
How was the employee made aware of it (bulletin board, desk manual, staff meeting notes, prior oral or written communication, employee's job description card, written standards)?
What evidence do you have that the employee is aware of it, and understands it (new employee orientation, signature on a routing slip)?
Has this issue been raised in performance appraisals or previous disciplinary actions? If so, how recently? Have you reviewed the employee's personnel file?
Prior notice may not be necessary in cases of serious misconduct such as theft, insubordination, or job abandonment.

3. Sufficient Investigation. Did you conduct an investigation before making a decision about taking disciplinary action?

Why do you suspect that a work rule violation or performance discrepancy occurred?
Can the employee perform the task? Is there a history of successful performance, or could the employee need additional training?
Are there witnesses other than you? List others who may have knowledge of the issue through involvement or as witnesses (supervisors, employees, clients). Interview them and take notes.
Are there written records pertinent to the case in your department or elsewhere on campus? Should in-house records be secured under lock and key during the investigation?
Are there written processes or procedures which have a bearing on the case?
Is there equipment that should be examined by you or experts?
Do you need to call Internal Audit or the Campus Police? If you suspect misappropriation of University resources, you should immediately contact Internal Audit and your Employee Relations Specialist. Your own investigation will proceed, but other offices may provide information which becomes part of your evidence.

4. Fair Investigation. Was your investigation fair and objective?

How long ago did the alleged infraction occur? (Unnecessary delays may send a message that you don't consider the infraction to be serious.)
If you think you already know what happened, have you looked only for evidence to support your theory?
Should you conduct the investigation, or are you too close to what happened to be objective?
Should the employee remain on the work site during the investigation? (Do you fear sabotage, or is the employee a threat to others?)
Have you made every effort to reconcile conflicting statements or other conflicting evidence? Are you prepared to discard what you cannot validate?
Have you given the employee a chance to appear with a representative, to tell his side of the story and respond to the evidence you have gathered?

5. Proof. During your investigation, did you find proof of misconduct or of a performance discrepancy?

What conclusions are clearly supported by the evidence you gathered?
Remember that evidence must be truly substantial, not flimsy or slight, to form a basis for taking disciplinary action.

6. Equal Treatment. Have you dealt with your employees equally, without discrimination?

Are work rules applied consistently?
Are all employees held accountable for the performance standards established for their positions?
Have similarly situated employees (similar records and infractions) received the same discipline?
What is your department's record for taking disciplinary action for this type of infraction? What is the campus' record? (Explore this with your Employee Relations Specialist.)

7. Appropriate Discipline. How do you decide what's appropriate?

Is the discipline you propose to take reasonably related to the seriousness of the problem? (Did the violation pose serious safety problems or create work flow disruptions for the department?)
Is it reasonably related to the employee's record (length of service and overall performance)? Is this violation part of a pattern?
Do you have the authorization to take this action, or should you have it reviewed by the next level of management?
A minor infraction does not merit harsh discipline unless it is a repeat occurrence by the employee.
Given the same violation for two or more employees, their respective records of service provide the only basis for administering different disciplinary actions without being subject to a charge of discrimination.
What personnel program is the employee part of (AFSCME contract, PPSM)?

Disciplinary Alternatives

When deciding what disciplinary action to take, keep in mind that discipline is supposed to be constructive. Your goal is to guide the employee to correct performance or behavior, not to punish the employee. As a general rule, your action should be just enough to get the employee's attention. However, you may have to take progressively more serious actions if there is no improvement or if repeat occurrences follow. You need not take each of these actions, but you will normally take more than one of them. Your alternatives are:

Oral Warning:

Set a time and place to ensure privacy.
Make notes about what you want to say in advance.
Remember that the employee has a right to choose representation.
State clearly that you are issuing an oral warning.
Be specific in describing the unacceptable performance or behavior.
Remind the employee of the acceptable standards or rules. If they are available in writing, provide them to the employee.
State the consequences of failure to demonstrate immediate and sustained improvement: Further disciplinary action may be the result.
Note the oral warning on your calendar.

Written Warning: If you gave an oral warning and the problem performance or behavior persists, a written warning may be effective. You may decide to use this disciplinary action more than once, to get the employee's attention. Be careful, however, not to get stuck issuing repetitive letters of warning that fail to influence the employee's behavior or performance.

State clearly at the outset of the letter that it is a written warning, and cite the appropriate personnel policy or contract provision. (See Sample Written Warning Letter in this chapter.)
Describe the performance problem(s) or work rule violation(s) in very specific detail and attach documents which support your conclusions.
Outline previous steps taken to acquaint the employee with the issue (coaching sessions, performance appraisals, previous disciplinary actions) and attach copies of the documents you refer to.
Describe the impact of the problem (safety issues, need to reassign work).
Note the employee's explanation (as revealed during your investigation) or that the employee declined to offer one. If it was unacceptable, explain why.
Reiterate your expectations regarding behavior and/or performance.
Note that if the employee doesn't demonstrate immediate and sustained improvement, the consequence will be further disciplinary action, up to and including dismissal.
Refer the employee to the appropriate policy or contract provision for appeal rights.
Deliver the warning letter to the employee and place it in the employee's departmental personnel file using appropriate delivery procedures such as "Proof of Service." (See Sample Proof of Service Form in Chapter 23, Separations <hard copies of the Guide only>.)

Suspension without Pay: This is normally the next stage in progressive discipline after written warning(s)

Suspension typically prevents work for one to ten working days, as specified in the letter, and pay is docked accordingly.

Length of a suspension without pay will be influenced by policy or contract requirements.

The letter states that it is a suspension without pay, the appropriate policy or contract provision, and the number of days the employee will be suspended. It also (as with a letter of warning) describes the problem, previous corrective measures, impact of the problem, your expectations, consequences of failure to improve, and the employee's appeal rights.

Depending upon the personnel program the employee belongs to, you may be required to issue a letter of intent to suspend, which provides the employee with the right to appeal your intended action to the next higher management level before the action is implemented. Consult your Employee Relations Specialist as well as the policy or contract for more information.

Reduction of Pay within a Class: This alternative is normally used when you do not wish to remove the employee from the work site, but serious discipline is appropriate. It is a popular alternative, in lieu of suspension without pay, in cases of chronic absenteeism or tardiness.

The reduction of pay is for a specific period of time, related to the seriousness of the performance discrepancy or work rule violation, and noted in the letter.

The disciplinary letter will incorporate the same elements included in a suspension letter.

You may have to issue a letter of intent similar to that used in cases of suspension. Your Employee Relations Specialist will explain the procedure to you.

Demotion to a Lower Classification: This action involves movement of an employee to a lower level position, and may be temporary or permanent.

Demotion is most often appropriate in cases of inadequate performance of responsibilities at a particular level, rather than violation of work rules. It should be based upon a reasonable expectation that the employee will perform successfully in the lower classified position. For example, did the employee previously hold a similar position, and did he perform satisfactorily?

Your notice letter and process are quite similar to those used for a suspension without pay, or a reduction of pay within class. Contact your Employee Relations Specialist if you are considering this disciplinary alternative.

Dismissal: This alternative is normally selected after performance counseling and progressive discipline have failed to get the employee's attention to the problem.

In extreme cases, such as job abandonment, theft, or an act that endangers others, the offense may be so grave that progressive discipline is not necessary.

See Chapter 23, Separations - Dismissal for more detailed information on dismissing an employee.

The disciplinary actions most commonly employed on the Berkeley campus are written warnings and suspensions without pay. The concept of progressive discipline does not require that you use all the actions described above, but you will usually be expected to use more than one type in your attempt to correct the employee's performance or behavioral problems, because discipline should normally be progressive.

As a supervisor, it is perfectly natural for you to feel frustrated or angry when an employee repeatedly fails to perform satisfactorily or follow the rules. Keep in mind, however, that most employees come to work wanting to do a good job. Some will require more specific and frequent feedback than others to understand what that means in your work site and in the jobs under your supervision. Frequency of feedback will largely depend on what you observe in the employee's behavior and performance and on the cycles of the work (e.g., tardiness can be corrected immediately, but it may take days or weeks to complete a particular project or task for your review).

Remember that the purpose of disciplinary action is to turn performance around by continuing to identify problems, causes, and solutions. If you can accomplish it in a positive and constructive way, you will send a message that you are out not to punish, but to help the employee become a fully productive member of your work unit.

Other Resources

CARE Services for Faculty and Staff
The Ombudspersons for Staff
Employee Development & Training Classes and Workshops
The CALS Project
Employee Relations Unit in Human Resources
Applicable personnel policies and union contracts

Sample Letter Of Warning

Employee's Name
Campus Address

Dear [Employee's Name]:

In accordance with [cite applicable policy provision or contract article] this is a letter of warning. This action is based on your [list performance deficiencies and/or unacceptable behaviors].

On previous occasions detailed reviews of expectations regarding your [performance and/or behavior] have been undertaken to ensure that you understand the requirements of your position. They have been discussed with you orally [list dates, if available] and in writing [list dates of performance appraisals, counseling memos, and previous disciplinary actions; attach copies]. However, you continue not to meet these expectations.

Your failure to adhere to the requirements of your job on an ongoing basis has a serious impact on the operations of our department [work unit], and our ability to meet our goals. [Describe in detail, e.g., interrupted service to clients, missed payroll deadlines, safety hazards, overtime for other employees.]

Once again, you are expected to [reiterate performance/behavioral expectations, or attach copies of written standards and/or rules]. Failure to meet these requirements will result in further disciplinary action, up to and including dismissal.

You may review [cite applicable policy provision or contract article] for your appeal rights.

Sincerely,

[Supervisor's Name]
[Title]

Attachments: [Documents referenced in letter]
Proof of Service

cc: Departmental Personnel File
Department Head
Employee Relations Specialist
Employee's Representative, if appropriate