Discipline and Job Performance
A Tricky Issue Explained
Last month, I wrote about insubordination, which is the charge leveled against an employee who is unwilling to perform their job. Today, I want to talk a bit about job performance cases, which arise when an employee is unable to perform their job. For the purposes of this discussion, I am setting aside those cases where the employee may be unable to perform their job for disability-related reasons, but I will return to that at the end.
Job performance cases are among the hardest cases to arbitrate. Often the grievants do not otherwise have serious disciplinary issues; they are usually nice people who are struggling to meet the demands of their job. They may be impacted by new technology, new tasks, new management, or staffing reductions. What they have in common is that they cannot perform their job as directed.
Demotion is a common form of discipline that employers impose in job performance cases. Employer demote an employee when they don’t want to lose a long-time, trained employee and they have the ability to do so under their collective bargaining agreement. I’ll be using demotion as an example in this discussion because usually other forms of corrective action, like Performance Improvement Plans and progressive discipline, have not been successful.
Arbitrators take an expansive view of these cases because they aren’t necessarily related to fault. Let’s start with the disciplinary demotion for poor performance. Because demotion runs contrary to the seniority provisions of a CBA, most arbitrators expect disciplinary demotions to be explicitly permitted by the CBA and won’t read that into a CBA that doesn’t have it. In addition to applying a just cause standard, arbitrators will look at the pre-demotion steps an employer took, asking about retraining, mandatory safety meetings, and remedial testing, for example.
Arbitrators also encounter non-disciplinary demotions. Although they always feel disciplinary to the employee, employers have the right to set standards and direct the workplace and can demote an employee who is found to no longer be qualified or competent for their position. For example, after a regulatory visit, a hospital decides that certain tasks can no longer be performed by the uncertified Patient Care Technicians (PCTs) and that the work needs to be performed by the Certified Nursing Assistants (CNAs). Employees who do not become certified would be demoted or discharged because they are no longer able to perform their job.
Arbitrators will expect that the employer gave employees a reasonable amount of time to meet the new or revised standards, provided the requisite training, and offered support to the employee for the transition. But if the employee didn’t avail themselves of the opportunity, the Arbitrator will not set aside the new standards adopted by the employer.
Arbitrators will also distinguish between temporary poor performance and an ongoing inability to perform the job. For example, let’s assume PCT Patty has passed her certification test and is now working as a CNA. However, in that role, she’s not meeting the performance standards set by the employer. The arbitrator will probably look at whether Patty was given the time and opportunity to meet the standards, whether the standards were reasonable, and whether Patty has met the standards since the grievance was filed.
There are other reasons employers may need to discipline employees for job performance issues.
Reliability - Employees who are unreliable, either because of attendance or inconsistent job performance, may be subject to discipline.
Respect for coworkers, management and/or public - employees who do not meet customer service standards or who are disrespectful to their co-workers may be disciplined for job performance issues when the expectation of good conduct has been communicated.
Revocation - Employees who are not current in meeting their licensing or certification requirements may have their qualification revoked by an outside administrative body, which makes them unable to do their job. In these cases, the Union may be able to argue that there is another position they could perform until they are in compliance, but arbitrators won’t reinstate an employee who is not legally permitted to do the job.
Even in non-disciplinary performance cases, the employer has the burden of proof. In terms of evidence, the Arbitrator will look at the job description and the actual expectations of the job. A record of performance evaluations with documented PIPs are very supportive of an employer’s case. An employer who fails to do regular performance evaluations may be penalized for their lax enforcement of work expectations. Witnesses may be needed to testify about observed performance, and an employee should probably testify about why they have been deficient in their performance.
Often an employer will discipline an employee for failing to meet production standards. The Union will often argue that the production standards were not reasonable. Management does have a right to set production standards, but the standard cannot be vague or indefinite. An Arbitrator will ask what can be expected from a normally experienced employee under the normal work conditions exerting a normal amount of effort without fatigue or injury.
Often, a new manager will create a production standard without regard for the existing practices of the workplace. A best practice on setting production standards is to include the union’s input and it’s a best practice for the union to participate in that process. If it’s later determined that the union failed or refused to participate in setting the production standards when they had been invited to do so, it’s a “you snooze, you lose” situation.
Once reasonable performance or production standards are in place, management may discipline employees who repeatedly fail to meet the standard - a single act wouldn’t justify discipline. Employees should make a good faith effort to remedy deficiencies. Standards may seem too strict or too high to an individual employee but they will be permissible if they are similar to other employers in the industry or if other employees can regularly meet the standard.
Ultimately, the Arbitrator is asking whether management acted reasonably under its contractual obligations and the circumstances of the job and the workplace when it set job performance expectations that they are applying to an employee.
I hope this has been helpful! Many employers and unions are very frustrated by this area. In my experience, employers are successful when they have a good paper trail, set reasonable standards, and have given sufficient notice and opportunity to an employee to improve. Unions are successful when standards are vague, unrelated to the actual work performed, or unevenly implemented/enforced. Employees who demonstrate that they are making efforts to improve fare much better than employees who insist that “the old way” was better or that they shouldn’t have to meet new standards.
Let me know if you have any questions! And if you find this helpful, please share this column with your colleagues.