Disciplinary measures: What should employers do to reduce the risk of litigation?

April 25, 2019

As an employer, you may occasionally be required to impose disciplinary measures on problem employees. Handling such difficult situations requires an objective, planned approach so as to put an end to the misconduct and minimize the risk of litigation. To assist you in implementing your intervention and imposing disciplinary measures, here is a brief review of the three essential steps: (1) conducting an investigation, (2) selecting an appropriate disciplinary measure, and (3) imposing the disciplinary measure.

It is important to note that a disciplinary measure should be both a penalty and corrective action.

Non-disciplinary (administrative) action is used when an employee commits an unintentional violation that cannot be rectified because of the person’s inability to perform the required work (e.g., due to lack of knowledge or skills).

On the contrary, disciplinary action is warranted when an employee deliberately engages in misconduct. In this case, the measure is aimed at penalizing the employee and correcting the behaviour.

Step one: conducting a thorough, objective disciplinary investigation

Steps required for a disciplinary investigation

When you find out that an employee may have committed a violation that warrants a disciplinary investigation, it is essential that you promptly gather the facts, rather than acting impulsively.

Steps to follow:

Determine whether it is necessary to suspend the employee with or without pay during the investigation;
Determine who may have witnessed the violation;
Set up meetings with the witnesses:
- Prepare a list of open-ended questions that do not suggest a version of the facts or a judgment of the situation (this list may be improved during investigation meetings by adding sub-questions aimed at obtaining more detail, while ensuring that the same questions are asked and the same aspects confirmed with all those interviewed);
- Meet with witnesses individually in a private area to ensure the confidentiality of the process;
- Set aside sufficient time to cover all aspects of the situation being investigated;
- Plan for replacements for employees called to meetings, if necessary; and
- Ensure that a second person is present to act as a witness (to take notes during meetings and to attest to what was discussed).
Meet with potential witnesses:
- Take notes that are as complete as possible during meetings;
- Ensure that you fully understand the answers and information provided by the witnesses;
- Ask questions to obtain clarification when in doubt to avoid misunderstanding the version of the facts being reported;
- Do not be afraid of moments of silence, since they sometimes have the effect of making witnesses speak more, giving them the opportunity to elaborate on their answers; and
- Ideally, obtain a written statement, dated and signed by the witness, that summarizes the information provided during the meeting, or confirm the contents of the oral statement with the witness by having the witness read the notes taken during the meeting.
Meet with the employee suspected of having committed the violation last, to obtain his or her version of the facts.
- Apply the same rules to that meeting as those listed above for setting up meetings and meeting with other witnesses.

Act quickly and carefully

It is important to act diligently when initiating and conducting the investigation, as doing so will allow you to:

Collect evidence while it is still fresh in the minds of those concerned;
Rectify the problematic situation quickly; and
Avoid creating unnecessary stress for employees, particularly if the investigation reveals that no violation can be proven.

Notwithstanding the above, take the time to gather all necessary information or carry out further investigation before deciding whether to impose a disciplinary measure.

Respect the collective agreement or the organization’s working conditions

If a collective agreement applies to your employees, you must ensure that you comply with the disciplinary investigation requirements set out in the agreement, including the obligation to inform the union or allow a union representative to be present at meetings, time limits for imposing a disciplinary measure, conditions for disclosing the reasons why a measure is being imposed, etc.

If there is no collective agreement, it is prudent to follow the rules the employer has set for itself in internal policies or other working condition documents.

Step two: selecting the disciplinary measure

If the investigation reveals that the employee has indeed committed a violation that warrants disciplinary action, you must now select a disciplinary measure.

Penalty proportional to the misconduct

When selecting a measure, the first principle is to ensure the penalty is proportional to the misconduct. The more serious the misconduct, the more severe the penalty should be.

Penalty scale (subject to exceptions)

Barring exceptional circumstances and subject to your organization’s collective agreement and policies, you should use a penalty scale, which normally includes the following:

Verbal notice;
- Note: Although this is a verbal notice, a detailed description of the notice must be kept in the employee’s file to ensure that the situation is monitored.
Written notice;
Suspension;
- Depending on the circumstances, it is generally preferable to impose a short suspension, followed by a longer one, before dismissing an employee.
Dismissal.

There are exceptions to implementing such a penalty scale, including, in particular, the following:

Serious misconduct having the effect of permanently breaking the relationship of trust which must exist between employee and employer; and
Management employees (although such a scale is difficult to apply to management employees who have committed violations, nevertheless, with few exceptions, they should have been previously notified of the allegation and been given the opportunity to make amends).

Things to consider when selecting a penalty

In addition to using a penalty scale, you must ensure that you comply with the collective agreement and your business’s policies, which may include provisions for disciplinary action in the event of violations of the requirements specified in such policies.

You must also verify whether the proposed measure is consistent with disciplinary measures applied in previous similar cases, so as to demonstrate that discipline is carried out consistently and fairly throughout the business, while respecting the specific facts of each case.

Finally, you must consider the aggravating and mitigating factors that are relevant to your employee’s situation. Here is a non-exhaustive list of examples:

Aggravating factors	Mitigating factors
Seniority (depending on violation)	Seniority (depending on violation)
Disciplinary record riddled with violations	Clean disciplinary record
Significant consequences of the violation for the business, customers, colleagues, etc.	Violation with no significant consequences for the business, customers, colleagues, etc.
Status or importance of the employee’s duties to the business	Employee’s tasks are generally supervised or not critical to corporate affairs
Premeditated violation	Violation that was not premeditated
Absence of remorse or apology	Admission of guilt, show of remorse and apology
Lack of collaboration or transparency during the investigation	Collaboration and transparency during the investigation
Employee autonomous when carrying out duties, generally without supervision	Lax supervision or requirements on the part of the employer in the past in relation to the violation

Step three: imposing the disciplinary measure

Once you have determined the disciplinary measure that best fits the circumstances, you must call a meeting to inform the employee of the measure.

As with investigation-related meetings, you must meet with the employee in private and ensure that a witness is present with you to take notes during the meeting. Notes and disciplinary measures must be entered in the employee’s file.

During the meeting, a disciplinary letter must be given to the employee, and the contents of the letter must be repeated to confirm the measure being imposed and to clearly and succinctly explain the violation(s) the employee is accused of.

If the measure is not dismissal, you should take the opportunity to remind the employee of your expectations, which should also be explicitly stated in the disciplinary measure letter. In addition, the letter should state that any subsequent misconduct may result in a more severe disciplinary measure, which could even include dismissal.

We remind you that you must document and carry out the measure in accordance with the requirements of the collective agreement and business policies, if applicable.

Conclusion

This quick reference guide should help you plan the imposition of a disciplinary measure to ensure that you:

Carry out a proper investigation;
Carefully select the measure to be imposed; and
Impose a disciplinary measure in an appropriate manner, ensuring that you monitor your employee’s disciplinary file.

However, measures must be imposed on a case-by-case basis. Our Labour and Employment Law team is available to advise and assist you for each of the three steps.

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Employers’ Right to Require Medical Certificates: New Restrictions as of January 1, 2025

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Section 1 of the Act; see also the Worst Forms of Child Labour Convention, adopted in Geneva on June 17, 1999, article 3: Link Section 1 of the Act; see also the Forced Labour Convention, adopted in Geneva on June 28, 1930, article 2: Link Section 19 of the Act. Section 20 of the Act.

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Harassment and Violence in the Workplace: An Overview of Recent Legislative Changes Introduced by Bill 42

Introduction In 2020, faced with statistics showing that nearly one in two women and three in ten men believed they had suffered sexual harassment or assault in the workplace,1 the Minister of Labour expressed its intention to help prevent and address this issue. The government began by setting up a committee to examine cases of sexual harassment and assault (the “Committee”). Its mandate was to analyze how such cases are handled in workplaces across the province.2 The Committee made over 82 recommendations in its report titled Mettre fin au harcèlement sexuel dans le cadre du travail : Se donner les moyens d’agir [putting an end to sexual harassment in the workplace by developing the means to act], which was prepared in collaboration with law enforcement agencies and further to consultations with various stakeholders, including community groups, unions and employers , as well as groups of women workers. The government included a number of recommendations from the report into Bill 42.3 This Bill, which is aimed at preventing and fighting psychological harassment and sexual violence in the workplace, was assented to on March 27, 2024. It introduces major amendments to various labour laws, which are likely to change existing practices within organizations. The following is an overview of these amendments and their potential impact. A. Occupational health and safety The Act respecting occupational health and safety was first amended to introduce a definition of what constitutes“sexual violence,” whichcame into force on March 27, 2024, and reads as follows: Any form of violence targeting sexuality or any other misconduct, including unwanted gestures, practices, comments, behaviours or attitudes with sexual connotations, whether they occur once or repeatedly, including violence relating to sexual and gender diversity.4 This broad definition could very likely affect existing employer policies and give rise to a host of problems needing to be resolved by the courts to ensure proper application. Action programs and prevention programs [effective October 6, 2025]: When developing an action program (for businesses with 20 workers or less) or a prevention program (for businesses with 20 workers or more), employers will be required to identify and anticipate psychosocial risks and risks related to sexual violence that may affect workers in their establishments.5 B. Industrial accidents and occupational diseases New legal presumptions of employment injury [effective September 27, 2024]: The Bill introduces two new legal presumptions of employment injury to reduce the burden of proof for victims of sexual violence in the following situations: Where injuries and diseases are the result of sexual violence suffered by a worker and perpetrated by the worker’s employer, one of the employer’s executives in the case of a legal person or a worker whose services are used by such employer; and Where a disease occurs within three months after the worker has been the victim of sexual violence. The burden will then be on the employer contesting an injury of this nature to reverse the application of these presumptions. Handling employment injury claims will be even more difficult, as Bill 42 provides that employers will not have access to workers’ medical records prior to hearings before the Administrative Labour Tribunal. Employers prohibited from accessing medical records [effective September 27, 2024]: Bill 42 sets out stricter obligations for health professionals designated by employers. Only the health professional designated by an employer will have access to the medical record in the possession of the Commission des normes, de l’équité, de la santé et de la sécurité du travail concerning the worker’s employment injury.6 It will not be possible for the employer to obtain all information concerning a worker’s medical condition, because the health professional will be required to limit disclosure to only the information needed to provide the employer with a summary of the file and an opinion on how to handle the employment injury claim.7 The prohibition on access to medical records also carries important fines ranging from $1,000 to $5,000 for a natural person and from $2,000 to $10,0008 for a legal person. However, it does not preclude employers from obtaining medical records concerning the employment injury by way of an authorization or subpoena. Extension of time limit for filing a claim [effective September 27, 2024]: The new time limit for filing a claim for an injury or disease resulting from sexual violence is two years.9 In all other cases, the time limit for filing a claim is six months from the occurrence of the injury.10 Cost of benefits imputed to all employers [effective March 27, 2024]: As an exception to the principle that employers must cover the costs associated with employment injuries, where an employment injury is the result of sexual violence suffered by a worker, the Bill provides that the cost of benefits will automatically be imputed to the employers of all the units.11 However, we must bear in mind that the imputation of costs to all units will have repercussions as it will lead to an increase in the cost of compensation regime for all employers. C. Labour standards Bill 42 also introduces a number of amendments to the Act respecting labour standards, including the following. Adjustments to harassment prevention and complaint processing policies [effective September 27, 2024]: Such policies must now include: The methods and techniques used to identify, control and eliminate the risks of psychological harassment, including a section on behaviour that manifests itself in the form of verbal comments, actions or gestures of a sexual nature. The specific information and training programs on psychological harassment prevention that are offered to workers and the persons designated by the employer to handle complaints or reports. The recommendations on behaviour to adopt when participating in work-related social activities. The applicable procedures for making complaints or reports to an employer or providing an employer with information or documents; details about the person designated to handle complaints or reports; and information regarding the employer’s obligation to follow up. The measures to protect the persons concerned by a psychological harassment situation and those who cooperated in processing a complaint or report regarding such a situation. The process for managing psychological harassment situations, including the process applicable to inquiries conducted by employers. The measures to keep complaints, reports, information or documents received confidential and, for the documents made or obtained in the course of managing a psychological harassment situation, the measures necessary to retain them for at least two years.12 The policy must form an integral part of the prevention program or action program under the Act respecting occupational health and safety [as of the effective date to be set by the government, which will be no later than October 6, 2025]. Harassment by third-parties [effective September 27, 2024]: Employers are expressly obliged to prevent psychological harassment “from any person.” This includes any third parties they do business with, such as customers, subcontractors and suppliers.13 The passage of time does not clean the slate [effective March 27, 2024]: An amnesty clause contained in a collective agreement will have no effect on disciplinary measures resulting from behaviours relating to physical or psychological violence within the meaning of the law.14 This major amendment is aligned with developments in case law on applying amnesty clauses in psychological harassment situations. Confidentiality of the psychological harassment complaint resolution process [effective September 27, 2024]: Where the parties to a settlement of a psychological harassment complaint do not wish to undertake to keep the agreement confidential, they must expressly agree in writing to waive the confidentiality obligation in the agreement.15 Punitive damages even in cases involving employment injury [effective March 27, 2024]: Where a worker’s psychological harassment complaint is upheld and they have suffered an employment injury resulting from the psychological harassment, they may also be entitled to punitive damages.16 The Administrative Labour Tribunal was previously prohibited from ordering an employer to pay punitive damages to a worker having suffered an employment injury resulting from psychological harassment.17 Expanded prohibition against reprisals [effective March 27, 2024]: In addition to the cases already provided for in the ALS, an employer may not take reprisals against a worker on the ground that the worker has made a report involving psychological harassment or cooperated in the processing of such a report or a complaint.18 Pratical considerations Given the many amendments introduced by Bill 42, all employers should keep abreast of new developments and best practices in preventing and handling harassment and violence in the workplace. In the short term, we recommend that employers: Hire experts to review and update their prevention of harassment and violence in the workplace policies before September 27, 2024. Depending on each situation, retain the services of a health professional who will play a proactive role and liaise with the employer in the handling of an employment injury claim. Explicitly define the terms of the mandate given to such expert in order to pinpoint what information is required to handle the employment injury claim. Schedule training sessions for all staff, including managers and executives. These training sessions should cover not only the aforementioned amendments, but also the procedure for reporting a sexual harassment or violence situation, filing and handling a complaint and making sure the process remains confidential. Inform members of their organization of the new definition and the updated company policy and establish response guidelines for managers who will have to deal with the various situations that can arise. Designate a person who will be in charge of enforcing and applying the harassment prevention and complaint processing policies. Carefully and meticulously document all aspects of inquiries conducted further to sexual violence or sexual harassment situations. Enlist the help of specialists in the field to help them identify and analyze the psychosocial risks and risks related to sexual violence that may affect workers in their establishment. Lastly, as regards handling employment injury claims, despite the fact that employers will no longer have to cover associated costs all on their own, employers may still need to handle claims or contest them in some situations, and they will have the burden of reversing the application of the presumptions benefiting workers. Limited access to medical records means more grey areas and more complex claims management. Given these significant changes, we believe it will be all the more important for employers to turn to qualified experts. When they do so, they should carefully set out the mandate that they wish to entrust to the expert in question to make sure that the opinion they obtain is detailed enough to adequately manage the employment injury claim. The terms of the mandate will need be drafted such that the expert understands whether the information requested is relevant for the employer to properly handle the claim. Our team is available to help you assess the impact that these many changes may have on your business. Statistics Canada, “Gender Results Framework: A new data table on workplace harassment,” released on February 12, 2024, online: The Daily — Gender Results Framework: New and updated data tables (statcan.gc.ca). This initiative was prompted by recommendation 138 of the report titled Rebâtir la confiance : Rapport du comité d’experts sur l'accompagnement des victimes d’agressions sexuelles et de violence conjugale [rebuilding trust: report from the committee of experts on support for victims of sexual assault and domestic violence], released in 2020. An Act to prevent and fight psychological harassment and sexual violence in the workplace, Bill42 (assented to on March 21, 2024), 1st Sess., 43rd Legis. (Qc) (hereinafter “B. 42”). The Bill’s provisions will gradually align with other legislative changes introduced by other recent bills, such as An Act to modernize the occupational health and safety system[3] and An Act respecting the regulation of work by children. Section 33, B. 42; section 1, Act respecting occupational health and safety (“AOHS”). Sections 35 and 36, B. 42; sections 59 and 61.2, AOHS. Section 5, B. 42; section 38, Act respecting industrial accidents and occupational diseases (“AIAOD”). Section 7, B. 42; section 39, AIAOD. Section 16, B. 42; section 458.1, AIAOD. Section 16, B. 42; section 271 and 272, AIAOD. Section 10, B. 42; section 271, AIAOD. Section 12, B. 42; section 327, AIAOD. Section 18, B. 42; section 81.19 Act respecting labour standards (“ALS”). Section 18, B. 42; section 81.19, ALS. Section 20, B. 42; section 97.1, ALS. Section 25, B. 42; section 123.17, ALS. Section 24, B. 42; section 123.15(4.1), ALS. s. 123.15(4) and 123.16, ALS. Section 21, B. 42; section 122(2.1), ALS.

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