Medical Group Management Association of Canada Managing Problem Employees By: Darcie C. Yale dyale@darcydeacon.com And Michael Merner mmerner@darcydeacon.com www.darcydeacon.com

5 Simple tips to avoid costly mistakes What type of mistakes are we talking? Awards for wrongful dismissal Bad faith actions for termination Punitive / aggravated damages Reinstatement (back pay) Human Rights Awards Damages to injury, dignity, self respect Poisoned / dysfunctional work environment Damage to employer reputation www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

5 Tips Know when you have a problem Act to manage the risk Have the information to effectively manage the risk Control the outcome Prepare to defend your actions www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Identify the Problem Generally problem employees are a very small part of a workforce. However, they consume a disproportionate amount of HR and Management’s time and attention. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Identify the Problem Usually these employees are not positive contributors and can negatively impact the workplace environment: Disgruntled; Apathetic; Argumentative; Chronic Absenteeism; Performance Issues; Discipline Issues. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Identify the Problem Problem employees are sometimes savvy enough to work the system to their advantage. How much of a problem can depend; spectrum from – time wasters  threat to stability of work environment. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Manage the Risk Who is in charge – important to take charge and manage risk. This is often where employers are lax – reasons vary: Time to manage; Frustration with problem – not worth effort; Manipulation by problem employee. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Manage the Risk Failing to confront the problem and retaining an underperforming employee is not the solution. Need to tackle the issues head on www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

When to Manage Risk At interviewing and hiring stage; At probation; Evaluation of performance; When things start to slip; Want to be on top of the issue before it becomes a chronic issue; When discipline is warranted. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Have information to Manage Effectively Attendance policies: Establish a clear policy with expectations, monitoring, investigation, discipline and to address increasing tardiness and absenteeism. Implement a performance management and review system that rewards excellence and uses strategies to improve performance. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Have Information to Manage Effectively Develop clear discipline: Employer expectations are clear Employer response is clear Have a process: Incident Investigate Hear from employee Respond appropriately Use tools – coaching Verbal warning Written warning Suspension termination www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Have Information to Manage Effectively Train your managers Need your supervisors and managers to be on top of the problems; To know what to do; To act immediately; To not let it get out of hand. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Control the Outcome Communication of Expectations and Consequences Set good ground rules: Employees know what is expected. Supervisors and managers know what is out of bounds; Consequences are understood. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Control the Outcome Communication of Expectations and Consequences Use your tools: Employee handbook sets out policies and practices; Policies on employee behavior (ie. social media, attendance, calling in sick, on-call, etc.); Evaluations of job performance; Safe work; Respectful workplace policies; Respectful and considerate of employees; Address concerns in a responsive and effective manner; Have a formal complaint process; Understand and complete fair investigations; Reward excellence; Remove mediocrity. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Prepare to Defend your Actions Discipline and Termination These are the “active mistakes”; passive mistake is doing nothing www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Effective Discipline Two most common complaints: I do not know what they expect from me. I thought I was doing a good job and was disciplined without fair warning. Communication is an essential part of the employment relationship. Formal Informal www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Performance Management The basics: Advising employees of their shortcomings is possibly the most unpleasant aspect of the employer-employee relationship. When the employer identifies difficulties, it is extremely important that the employer tells the employee of these difficulties and gives the employees an opportunity to improve. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Performance Management Except for egregious errors, an employer must generally provide a clear warning to an employee about his substandard performance before just cause will be found for dismissal based on unsatisfactory performance. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Discipline First step when a matter comes to your attention is to determine: The nature of the incident; Whether it merits discipline. Must investigate before you react. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

The Investigation If someone is brining the information to you: Listen carefully; Make notes. If you witnessed the incident directly, make notes immediately following the incident. Then ask: What exactly happened? What more do I need to find out? www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

The Investigation What information do you need? Which employee or employees are involved? What is the allegation? When did it happen? What specifically happened? Is the problem a recurring one? If so, what is the history? How did conduct deviate from expected conduct or policy? www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

The Investigation Are there any documents that should be secured to prove the misconduct? Who has knowledge of the incident? What do these employees/individuals say happened? What does the employee say? www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

The Investigation To gather the necessary information, conduct interviews, make notes and obtain statements. Do the investigation assuming you will be challenged. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Assessment of the Infraction Is the employee aware conduct was unacceptable? Review the employment file and circumstances. Consider history. Is discipline warranted? Human Rights Considerations: Illness or disability the root cause of the employee’s actions? If so, discipline may not be appropriate. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Discipline If, as a result of the investigation, discipline is warranted, remember: Impose discipline consistently; Each disciplinary decision is a benchmark; If your decision is fair and transparent, it is less likely to be challenged. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Progressive Discipline Except in cases of gross misconduct (something so egregious that the employer’s reputation is irreparably damaged), discipline should be imposed in a progressive fashion. The intention should be corrective in application. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

The Scale of Progressive Discipline Oral warnings; Written warnings; Placement on probation; Suspension with or without pay; Demotion; Termination of employment. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Defending Your Actions Effective Discipline and Documentation Employees enjoy the position of being “innocent until proven guilty”. Employer must prove what happened and why response was appropriate. Biggest problem – employers don’t have the requisite paper trail to prove the cause. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Defending Your Actions Effective Discipline and Documentation The most persuasive cases are those where the employer, with the help of counsel, leads the court through the employment relationship: Start with duties and responsibilities on hire; How the employee breached his duties; What corrective action was taken; Why disciplinary penalty was ultimately imposed. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Defending Your Actions Effective Discipline and Documentation Expect the employee will argue: Did not know duties were his responsibility; Unaware he was breaching expectations; Others were treated differently; No basis for employer’s complaint. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Discipline should be: Immediate; Consistent; Predictable; Documented. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

The Rules Investigate fully; Discipline fairly; Document everything. www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com

Questions? www.darcydeacon.com Darcie C. Yale - dyale@darcydeacon.com Michael Merner - mmerner@darcydeacon.com