1. Medical Group Management Association of Canada
Managing Problem Employees
By: Darcie C. Yale
And Michael Merner

2. 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
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3. 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
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4. 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.
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5. 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.
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6. 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.
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7. 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.
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8. Manage the Risk
Failing to confront the problem and retaining an underperforming employee is not the solution.
Need to tackle the issues head on
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9. 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.
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10. 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.
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11. 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
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12. 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.
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13. 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.
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14. 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.
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15. Prepare to Defend your Actions
Discipline and Termination
These are the “active mistakes”;
passive mistake is doing nothing
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16. 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
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17. 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.
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18. 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.
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19. 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.
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20. 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?
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21. 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?
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22. 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?
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23. The Investigation
To gather the necessary information, conduct interviews, make notes and obtain statements.
Do the investigation assuming you will be challenged.
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24. 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.
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25. 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.
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26. 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.
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27. The Scale of Progressive Discipline
Oral warnings;
Written warnings;
Placement on probation;
Suspension with or without pay;
Demotion;
Termination of employment.
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28. 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.
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29. 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.
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30. 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.
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31. Discipline should be: Immediate; Consistent; Predictable; Documented.
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32. The Rules Investigate fully; Discipline fairly; Document everything.
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33. Questions? www.darcydeacon.com
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