Staff Discipline Policy

Staff Discipline Policy: http://lists.freegeek.org/pipermail/minutes/2012-March/001293.html, http://lists.freegeek.org/pipermail/minutes/2012-March/001290.html
List of Policies - Policy Development

Scope

Free Geek's Disciplinary Procedure will be used only when necessary and as a last resort. Where possible, informal and/or formal counseling will be used to resolve matters prior to any disciplinary action being taken. The procedure is intended to be constructive rather than punitive but recognizes the fact sanctions must be applied in some circumstances.

These principles apply to discipline of bargaining unit employees and staff collective members. However, this particular procedure applies to the discipline of staff collective members.

A collective member can discuss any part of this policy with any other member of the Staff Collective. They can help clarify an employee's rights as well as give guidance and support where it may be needed. Every individual has the right to representation at any point during the disciplinary process.

This Procedure is to be maintained independent of any Procedures for performance review.

This Procedure is an interim solution, designed to provide needed clarity regarding discipline issues in a manner consistent with Free Geek's current structure and culture. It strives to balance the need for transparency, fairness, effiency and due process. As an interim policy, this policy's execution and effects should be reviewed occassionally by both the Staff Collective and Board, and the policy should be amended, replaced or abolished as the situation demands.

N.B. Nothing in this policy may usurp any party's legal rights, including the right to bring legal proceedings where appropriate.

Procedure For Formal Discipline & Investigation

The procedure for discipline is a five stage policy starting with counseling and moving through a series of verbal and written warnings before ending with the possibility of demotion or dimissal as a last resort. It is intended that this be followed sequentially, moving from one stage to the next only when it is clear that a staff member has been shown not to have met a clear set of expectations set in the previous stage. Exceptions are to be made only in the case of Gross Misconduct when, at a Department Point Person's discretion, they may start at a later stage as they consider appropriate.

At each stage, excepting dismissal, care must be taken to record in writing:

• the reasons for the action taking place
• the expectations that have now been set for the employee
• what are the next steps to be taken by employee and Department Point Person
• when the expectations are to be reviewed.

It is important that the expectations set meet the S.M.A.R.T. criteria of being Specific, Measurable, Appropriate, Realistic and Time-bound. Wherever possible, Department Point Persons should work with staff members to arrive at a mutually agreed upon set of expectations and time scales.

Department Point Persons have a clear duty to consider whether they have any personal involvement, or whether any conflict of interest might arise. If so, they must bring the matter to the attention of another Department Point Person and hand the matter over to them.

Staff members have the right to have a work colleague attend any disciplinary procedure with them and to consult that person in private. Staff members may request this at any time before or during a meeting. When such a request is made, the Department Point Person must delay any meeting until the work colleague has arrived and has time to consult privately with the staff member or end the meeting. Though counseling is considered informal, it should still meet the criteria set within this policy - i.e., it needs a written record and a set of clear expectations to be agreed upon.

Department Point Persons have the right to bring in others in order to aid them in investigating the matter and deciding on the course or outcome. They are strongly advised to do so if they have any doubts or questions about anything. At the first opportunity, they should gather evidence and take statements from witnesses and/or the staff member's supervisors or co-workers and prepare a written report.

Counseling

Prior to any formal disciplinary measure being undertaken, a Department Point Person has a responsibility to resolve any issues through informal counseling, where appropriate. Counseling is a non-punitive measure and may come at the request of a staff member as well as a Department Point Person, with the clear understanding that such a request will not have any effect on any subsequent disciplinary measure or performance review, or the conditions of employment in any way.

Verbal Warning

The first step after counseling is the verbal warning. It is appropriate when it is necessary to take action against a staff member for minor misconduct, or where improvements sought through counseling have not been forthcoming. Despite the name, it is important that a written record is kept and provided to the staff member. They are at the discretion of Department Point Persons and may not be blocked. There is no appeal of a verbal warning, but staff members have the right to have a statement entered into their personnel files if they wish to dispute anything.

When issuing a verbal warning, Department Point Persons should arrange to meet with the staff member to discuss the matter and set expectations. They should be warned that failure to meet these expectations, or repetiton of the misconduct, may lead to further disciplinary action. A copy of the written record must be given to the staff member within seven days of the disciplinary action, and a copy filed in their personnel files. A copy must be also be sent to all other Department Point Persons for review. This procedure is to be followed in all subsequent stages.

Verbal warnings expire after 6 months, as explained below under section "Time Scales/Terms of Expiry".

First Written Warning

The next step of the disciplinary procedure is the first written warning. It may be issued in a number of circumstances:

• as a second stage after a verbal warning if the expectations documented in the written record have not been met at the end of the specified review period or if there is a re-occurrence of the misconduct within six months.
• where the offense is of a serious nature that falls short of Gross Misconduct, and where a verbal warning is not appropriate.
• where the recurrence or accumulation of offenses will lead to more severe disciplinary action, for example persistent absence without explanation.

First written warnings expire after 12 months. They may be appealed by the staff member to the relevant body as described under the "Appeals" section. The staff member must be informed of this right at the meeting with their Department Point Person.

Department Point Persons should follow the same procedure as verbal warnings and must submit a copy of the written record to all other Department Point Persons for review. If there is consensus among them (excepting those who have a direct involvement or another conflict of interest) they may retroactively revoke the written warning and refer the matter back to the originating Department Point Person. The other Department Point Persons have a duty to consider the fairness, appropriateness and consistency of other Department Point Persons' actions and should use this power to ensure these.

Final Written Warning

Final Written Warning is the last stage in the Disciplinary procedure before demotion or dismissal takes place. It is used when:

• A staff member engages in Gross Misconduct that falls short of the need for instant dismissal
• A staff member persists in minor misconduct that has already been the subject of a First Written Warning.

Like a first written warning, it may be appealed by a staff member and is subject to a retroactive block by a consensus of the other Department Point Persons.

A Final Written Warning expires after a period of 18 months.

Demotion/Dismissal

A Department Point Person may recommend dismissal or demotion of a staff member if:

• Prior attempts to address the situation at all appropriate lower levels have failed
• The situation is one of Gross Misconduct, deemed by the Department Point Person to supercede less severe steps

If the recommendation is not overridden by consensus of the other Department Point Persons, the staff member is given notice of the recommendation and placed on paid administrative leave for five business days. This leave is meant to serve as a cooling off-period, giving the staff member a chance to prepare for and file an appeal of the recommendation or to tender their resignation. This period also gives the Department Point Person time to consider and reflect on the situation before making a decision of such consequence.

The staff member may appeal the recommendation, according to the Appeals procedures outlined below. If the first appeal is unsuccessful, the recommendation continues on to the Staff Collective as a whole. The Staff Collective as a whole, excepting those who have a direct involvement or another conflict of interest, makes the decision to accept or reject the recommendation.

If the Collective as a whole fails to reject the recommendation, the recommendation is carried out, and the staff member is either dismissed or demoted in accordance with the recommendation.

A decision to demote results in the staff member being placed on an additional five business days' administrative leave. During this leave, the Collective must present the staff member with the specific terms of the demotion, including:

• New job status/description, if applicable
• New reporting/oversight arrangements, if applicable
• Any changes in compensation, including benefits
• Any other terms or conditions that have changed as a result of the decision
• Notice that any further repetition of the issue will result in Dismissal

A decision to dismiss results in the immediate termination of the staff member. At this time, the staff member is to receive written notice of the decision, explicitly including the steps to undertake a final appeal to the Board of Directors. Steps regarding end-of-employment procedures are to be carried out, as established, at this time.

Time Scales/Terms of Expiry

The steps of the Discipline Policy are meant to be corrective, not punitive. Each step in the process involves a clearly stated time frame, during which repeat failure can trigger movement to the next step in the process. Escalation of the disciplinary procedure occurs only on repetition or failure to address a specific problem or closely related matters.

The time frame for each step increases with severity, as defined here:

• Verbal Warning -- 6 months
• First Written Warning -- 12 months
• Final Written Warning -- 18 months

This term is defined for each step of this procedure, and is to be communicated to the staff member as part of the written record.

If no further incident is recorded, at the conclusion of the time frame, the infraction is considered resolved, and the incident is to be removed from the staff member's personnel file, in accordance with [Personnel File Policy]. Once expired, the matter is considered resolved; any further infraction would be treated as a new incident.

Goals and expectations set by a staff member and his/her Department Point Person should involve their own time frames, to allow for adequate scrutiny within the review process. These time frames are independent of those set by the Discipline Procedure. Achievements and improvements may be noted, even if involving prior misconduct or failures from beyond the time frames defined here. But disciplinary steps may not compound based on behavior/performance that would be considered expired as defined in this policy.

Consecutive/Concurrent Warnings

The steps of this policy are meant to address serial failures around similar issues. It is possible for a staff member to have multiple, consecutive disciplinary actions regarding separate issues. These are to be addressed independently.

Appeals

Staff members have the right to appeal disciplinary actions, as follows.

A staff member may have a coworker of their choosing attend hearings as an advocate.

A staff member will have the opportunity to attend the appeals hearing, and to directly address the appeals body; however, all information to be considered will ideally be contained in the written appeal.

Deliberations are considered an Executive Session, open only to the members of the appeals body; however, the the decision is to be provided to the staff member directly, in writing, and maintained as part of the written record.

Makeup of Appeals Panels

The HR Administrator or any current member of the HR Committee shall be ineligible to serve on an Appeals Panel at any time.

When an Appeals Panel is needed, one should be selected based on random chance of three or four Collective Members who have not yet had any role in the matter or any other conflict of interest. A quorum of three panel members is needed to make any decision.

If at any point the appropriate appeals body is not available (due to lack of quorum, vacations, illness, recusal or any other circumstance that necessitates it), that appeal is channeled directly to the Board of Directors, and the Board will name one or more designees to either round out an existing, short-handed panel of Collective members, or to form an ad hoc panel to serve in a manner consistent with this policy.

It is assumed that Department Point Persons will not participate in appeals, as they will almost certainly have interacted with each proceeding already. However, if circumstances allow (e.g., a DPP returns from extended leave), it is possible for them to serve in such a capacity, provided it is their first contact with that specific incident.

First Appeals Panel

This panel communicates and convenes on ad hoc basis, as required. It may be asked to consider:

• appeal of a First Written Warning
• appeal of a Final Written Warning
• appeal of a recommendation for demotion/dismissal

Second Appeals Panel

This panel communicates and convenes on ad hoc basis, as required. It may be asked to consider:

• appeal of a Final Written Warning

Board of Directors

An appeal regarding a Collective decision to demote or dismiss an employee may be appealed directly to the Board of Directors. The Board may:

• consider an appeal as the full Board
• appoint a subgroup of Board members to hear the appeal
• appoint an one or more outside designees to hear the appeal
• appoint any combination of the above, as they deem fit in accordance with this policy

In the interest of maintaining a transparent and fair procedure, it is expected that the Board adopt a strategy for assigning designees prior to facing an actual appeals situation. The mechanics of deciding appeals remains fully at Board discretion, but it should be consistently applied.

Board members and their designees should also recuse themselves if they have prior involvement in the matter or any other conflict of interest.

Threshold for Overriding

Consensus of members in favor of a specific appeals claim is required to override a disciplinary decision or recommendation, at all levels. This consensus requires a quorum of 3 members.

Time Frames for Appeals Actions

At every level of appeal: Appeal must be made within 5 business days of receipt of written decision. Appeal must be heard within 10 business days of receipt of appeal, and the decision communicated in writing within 5 days of hearing.

Grounds for appeal

An appeal should be based on one or more of the following:

• The disciplinary action is based on factually inaccurate information
• Free Geek policy or procedure was not properly followed
• The resulting disciplinary action was inappropriate
• New information/evidence has arisen
• The need for disciplinary action was not warranted
• Separate offences/incidents were inappropriately considered in aggregate

Appeal of Verbal Warning

No appeal per se is allowed for verbal warnings, but a staff member has the right to include a statement to be maintained along with the record of the verbal warning. This statement would be considered should the matter proceed toward further disciplinary action. Information from this statement may, at that time, be sufficient to overturn the initial warning, causing the new incident to be considered as a first offense.

Appeal of First Written Warning

May be appealed to the First Appeals Panel. The First Appeals Panel's decision is final.

Appeal of Final Written Warning

May be appealed to the First Appeals Panel. The decision of of the First Appeals Panel may further be appealed to Second Appeals Panel. The Second Appeals Panel's decision is final.

Appeal of Demotion/Dismissal

Recommendations for demotion or dismissal may be appealed to the First Appeals Panel, prior to the recommendation being acted upon by the Staff Collective at its next regular meeting or at a special meeting held prior to next scheduled meeting.

The decision of the Staff Collective may be appealed to the Board of Directors. The Board's decision is final.

Should a final appeal to the Board of Directors prove successful, the person is reinstated and placed on paid administrative leave retroactively to the date of dismissal. The employee remains on paid administrative leave until the logistics of their return to work are determined, including the resolution of the issue based on the details of the successful appeal.

For example, the Board may determine the reason for dismissal was not merited at all, meaning the person is hired back just as before. Or they may have decided that dismissal was too severe of a consequence and demotion more appropriate. This would require additional details regarding terms of the new position be worked out before the staff member can return.

Oversight

Oversight is a necessary component of any successful discipline policy. An Oversight Committee will meet periodically to review disciplinary actions and report on them to the collective and to the Board. The Oversight Committee shall be composed of the HR Administrator, another Collective member, and two Board members or their designees. The purpose of the review is to ensure that:

• Proper procedures were followed, internally and legally.
• The cause of the disciplinary action is a valid concern.
• All necessary documentation has been completed.
• Discipline is being meted out consistently and without favoritism.
• DPPs and/or others recused themselves from discussion when appropriate.
• No DPP sought to unduly influence the choice of another DPP.

If the Oversight Committee finds that any of the above criteria have not been met, they are empowered to dismiss the complaint, downgrade the offense, or remove/add notes in the personnel file. If the disciplinary action by a Department Point Person constitutes gross misconduct, the Oversight Committee is empowered to, if necessary, initiate disciplinary action against that Department Point Person.

This committee will meet periodically only according to need; if there are no disciplinary actions to review, no meeting is necessary.

Discipline of Department Point Persons

Any DPP shall be empowered to initiate and conduct disciplinary action regarding any other DPP, subject to the other terms of this policy.

A DPP who is currently the subject of disciplinary action may not initiate and conduct disciplinary action regarding the DPP who is conducting their own disciplinary action, i.e., it is an automatic conflict of interest.

The Collective as a whole shall be empowered to direct a DPP to initiate and conduct disciplinary action regarding a staff member in their department, as well as to formally call for a DPP to initiate and conduct disciplinary action regarding another DPP.

Definitions

Administrative Leave

At the discretion of their Department Point Person, a staff member may be placed on leave for up to five business days. Administrative Leave may be necessary, for example, to allow an investigation to take place, to give the staff member or Department Point Person time to gather evidence or necessary paperwork, to prevent a staff member from interfering with evidence necessary for an investigation, to prevent them from exerting an influence over others, or to prevent them from being so influenced.

Administrative Leave is not punitive and shall not be used as a disciplinary measure. Nor shall it be used as evidence in, or be allowed to influence, a disciplinary procedure or performance review. Administrative Leave will be at full pay and will not be counted towards a staff member's paid time off. A staff member who has been put on Administrative Leave should receive written notice within three days outlining the reason for suspension, the date and times the suspension starts and ends, and notifying them of their right to appeal. Whenever possible, the staff member should receive written notice prior to, or at the start of, their suspension.

Administrative Leave shall not normally last for more than five business days. If it is felt necessary to extend it, the Department Point Person must first discuss it with all the other Department Point Persons and obtain their consent. The staff member shall then be notified in writing that their suspension will be extended, explain the reasons for the extension, how long the extension will last and notifying the staff member of their right to appeal the extension.

Business Days

Any and all references to time frames in "days" refers to business days, meaning days of Free Geek's normal, full operation. Days Free Geek is closed, or at less than full-time capacity by virtue of its normal schedule, are excluded from these time frames.

Demotion

Demotion will take the form of a removal of a staff member's collective status and/or transferral to a position with fewer responsibilities or one in which they will receive more direct supervision. It will be used:

• in instances where previous attempts to resolve the issue have failed, as a final attempt to solve a problem without dismissing a staff member.
• where a staff member is determined to be incompetent or otherwise unable to carry out their duties but dismissal is not felt to be appropriate.

Dismissal

Dismissal is the sanction of last resort. It is used when misconduct has persisted and all other avenues have been exhausted, or in cases of Gross Misconduct such as theft or violence against another person.

Appendices

Examples of Minor Misconduct

Listed below are examples of minor misconduct which may trigger the first step of the Disciplinary Procedure. This is not an exhaustive list, and does not pretend to anticipate the nuance of every situation. It is intended to provide guidance to Department Point Persons, and concrete examples to all staff members.

• Persistent lateness without notice
• Absence without notice
• Failure to work in accordance with Free Geek procedures
• Failure to meet stated expectations, including those established as part of prior disciplinary process
• Incompetence

Examples of Gross Misconduct

Listed below are examples of misconduct which may be considered to be Gross Misconduct and may warrant a Final Warning, Demotion or Dismissal. It is stressed that this list is not exhaustive and that a full and proper investigation must take place prior to issuing a Final Warning, Demotion or Dismissal.

• Unauthorized possession or use of Free Geek property
• Being unfit for duty due to intoxication
• Breach of confidentiality procedures
• Breach of data security procedures
• Breach of network/physical security procedures
• Physical assault
• Verbal abuse
• Willful damage of property
• Incompetence or willful action that creates an unsafe working condition

The Written Record

A record of any counseling or disciplinary actions must be given to the employee, as well as maintained in their personnel file, in accordance with this policy, and with the [Personnel File Policy].

All aspects of the Discipline Procedure should be documented as part of the Written Record, including:

• Investigations
• Evidence and statements as part of an investigation
• Recommendations for Demotion/Dismissal
• Disciplinary Actions
• Appeals
• Results of Appeals

An employee shall be furnished with all items of the Written Record at the time they are entered into their personnel file, unless explicitly exempted by the [Personnel File Policy].

(some aspects of investigations may be deemed confidential, such as grievances, testimony, etc. [Personnel File Policy] will clarify these specifics, based on established best practices, tbd)

The written record shall also contain relevant information to ensure the employee is aware of options and rights available to them, including:

• specific steps to appeal
• terms of expiry
• possible consequences of non-compliance
• how to find additional information/resources

Line Manager/DPP Responsibilities

All Department Point People shall have certain Line Manager responsibilities in order to successfully carry out disciplinary measures within their departments. These include:

• Provide counseling to workers in department
• Ensure workers in their department are adequately supervised
• Resolve disputes
• Start investigations
• Put someone on paid administrative leave for up to 5 business days
• Issue verbal warnings
• Issue written warnings (with oversight of DPPs)
• Issue final written warning (with oversight of DPPs)
• Recommend demotion/firing