Principles of Discipline
and
Grievance Resolution
Supervisor’s Manual
October 2006
Table of Contents
Part One
Principles of Discipline
Foreword
Section I - Overview of Discipline
What is Discipline?
State’s Philosophy
Supervisor’s Role
Past Practice
Section II - Principles of Discipline
Counseling
Progressive Discipline
Disciplinary Standards
Establishing Cause
Constructive Discharge vs. Voluntary Resignation
Section III - Administering Discipline
Management’s Burden of Proof
On-Duty vs. Off-Duty Misconduct
Investigatory Interview
Types of Disciplinary Actions
Predetermination Procedures
Promptness of the Discipline
Part Two
Grievance Resolution
Foreward
Section I - Avoiding a Grievance
Basic Principles of Supervision
Section II - Processing a Grievance
Who Can File a Grievance?
What is a Grievance?
Employee’s Choice of Remedy
Representation
Time Limits
Case File Management
Steps in the Grievance Procedure
Section III - Investigating a Grievance
Investigatory Process
Grievance Issues
Disciplinary Actions
Function of a Grievance Representative
Grievance Resolution and/or Settlement
Section IV - The Grievance Meeting
Career Service Grievance
Collective Bargaining Grievance
Conduct of the Grievance Meeting
Listening to the Employee’s Complaint
Concern for and Interest in the Complaint
Clearing up Misunderstandings or Miscommunications
Personality Conflicts
Providing Full Information
Promptness in Response
Section V - The Grievance Answer
Career Service Grievance
Collective Bargaining Grievance
Section VI – Conclusion
Part One
Principles of Discipline
Part one
Principles of Discipline
Forward
The State of Florida, as an employer, experiences the same types of discipline problems with its employees as any other major employer in both private and public sectors. The State relies on its supervisors and managers to recognize potential disciplinary problems at an early stage and to take the necessary action to assist employees in correcting the problems. Managers and supervisors are further relied upon to take appropriate disciplinary action if a problem is not corrected.
Recognizing the difficulty this area of human resource administration presents for most supervisors and managers, as well as the increasing emphasis on employee rights, we have prepared this part of the manual to assist supervisors and managers within State government to:
1)have a better understanding of the role discipline plays in good HR management;
2)understand the legal requirements which apply to Career Service employees when disciplinary actions are to be taken; and
3)avoid potential problems and pitfalls when disciplinary actionsare contemplated.
No attempt is made to recommend when or to what degree discipline should be administered. Those decisions are best left to the discretion of each agency based on its unique mission, standards of performance, disciplinary standards, and individual circumstances.
Section I
Overview of Discipline
What Is Discipline?
It is a common belief that the purpose of discipline is to punish. While disciplinary actions always include a measure of punishment or penalty, this should not be the primary reason for the action. Discipline also has been defined as a form of training that corrects and molds the individual’s job performance. As training and instruction of the employee are the primary objectives to be achieved, a penalty need only be used when other methods such as training and individual employee counseling have not been successful. With the exception of dismissal, various degrees of discipline are used, often as a last resort, to emphasize the seriousness of a particular situation in the hope that an employee will take corrective steps.
If the supervisor or manager has been unsuccessful in counseling an employee to correct problems which have been identified, there should be no hesitation in taking more severe action, such as a reprimand, suspension or termination. It is often said that such actions will not be sustained under the Career Service System or the collective bargaining agreements. Such statements are not supported by the record, and often are simply a defense for poor supervision, inappropriate discipline and/or a poorly prepared case.
Certain types of disciplinary actions are governed by Florida Statutes, the Rules of the Department of Management Services, Personnel Management System, that implement the statutory provisions, as well as collective bargaining agreements. Also, the agency’s standards of conduct control the kinds of action that may be taken, the reason for which such action can be taken and the range of penalties that may be used. However, all of these provisions exist to assure that supervisors and managers do not take arbitrary and capricious action against an employee and to assure similar treatment for similar offenses. Nothing in the statutes, rules or collective bargaining agreements prevents disciplinary action being taken when such action is warranted.
The sources of authority for discipline are found in the following:
1)Chapter 110, Florida Statutes
2)Chapter 60L-36, F.A.C., Conduct of Employees
3)The discipline article of each of the current collective bargaining agreements
4)Agency standards of conduct
Discipline is, therefore, the means by which we give formal notice to the employee of (1) specifically what he/she did wrong; (2) the rule or standard violated; (3) corrective action needed; and (4) what the employee can expect if the offense is committed again.
State’s Philosophy
To a large degree, the State’s philosophy concerning discipline has been established in the Florida Statutes. This philosophy has been further defined through adoption of the Rules of the Department of Management Services, Personnel Management System, and the language agreed to by the State in our collective bargaining agreements. Each agency’s standards of conduct further define our philosophy. These sources are more fully discussed below.
1)Chapter 110, Florida Statutes:
Section 110.227(1), Florida Statutes, states that any employee who has permanent status can only be suspended or dismissed for “cause.” The Florida Legislature has, therefore, indicated that management must have a reason or cause for suspending or dismissing a permanent Career Service employee. In other words, discipline must not be administered for reasons that are arbitrary, capricious or discriminatory. The penalty imposed should not be unreasonable in relation to the offense committed. Finally, the discipline must be based on conduct, action, or inaction, directly connected with or having a direct impact on the employee’s work.
Section 110.227(1), Florida Statutes, also states that “cause” includes, but is not limited to: poor performance, negligence, inefficiency or inability to perform assigned duties, insubordination, violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime.
2)Rules of the Department of Management Services, Personnel Management System:
The Rules of the Department of Management Services, Personnel Management System require that each employee’s performance be evaluated at least annually, to assess performance in relation to established job requirements and performance standards. Therefore, every employee should know the requirements and standards against which he/she will be measured by supervisors and managers.
The Rules also provide each agency the authority and responsibility to establish work requirements and standards against which employees’ performance, conduct and actions will be measured. Employees are required to meet these established requirements and standards. At the same time, however, supervisors and managers cannot expect employees to meet requirements they are not aware of, nor can they treat similar offenses or deficiencies among different employees in substantially different ways. In other words, management has the right to manage its work and its employees, but employees must not be treated in an arbitrary or discriminatory manner by their superiors.
3)Collective Bargaining Agreements:
Each collective bargaining agreement includes a discipline article that restates the principles established by Chapter 110, Florida Statutes.
4)Agency Standards of Conduct
Agencies may choose to develop Standards of Conduct that are specific to the unique mission of the agency. However the agency Standards of Conduct should supplement, not replace, the State’s philosophy concerning discipline that is found in statute, rule and the collective bargaining agreements.
Supervisor’s Role
Supervisors in the State workforce have been identified as those employees who have authority in the interest of the State of Florida as the public employer, and through its departments, divisions, bureaus, sections and subsections, to: recruit, select, train, develop, and maintain an effective and responsible workforce.
Inasmuch as it is the supervisor who initially is faced with the performance or discipline problem, it is important for supervisors at all levels to understand their role in State government with regard to taking steps to correct such problems.
1)Understanding the Statutes and Rules:
Every supervisor should have immediate access to a copy of: pertinent parts of Chapter 110, Florida Statutes; the Rules of the Department of Management Services, Personnel Management System; the collective bargaining agreements; and the agency’s standards of conduct and performance standards. The supervisor must become thoroughly familiar with these documents if they are to be an effective supervisor.
2)Implementing reasonable work standards:
A primary objective of every supervisor and manager should be to establish a working environment where employees feel that they are treated fairly, and can communicate openly with management. In order to do this, it is necessary to develop, consistently apply, and regularly review the work standards of the work unit. These standards should be the benchmark against which an employee’s performance is measured. Employees must understand that the supervisors and managers will determine their degree of success in their job based upon such measurements.
3)Counseling the employee:
When an employee fails to meet performance standards, the supervisor is responsible for taking or recommending corrective action. This action should begin by the supervisor meeting with the employee, explaining to the employee the standard that the employee is expected to meet, and the way the employee is failing to meet that standard. In the case of violations of standards of conduct, the supervisor should first attempt to counsel the employee in an effort to put the employee on notice that a violation has occurred, and to correct a behavior without having to take formal disciplinary action. A supervisor must maintain accurate records to document employee conduct and proposed corrective actions.
4)Applying corrective discipline:
Employees who violated standards of conduct by failing to follow agency rules, or fail to meet reasonable performance standards, even after counseling, cannot be ignored. Not only is it unfair to the public they serve, it is unfair to the employees who are meeting the required standards. When disciplinary action has to be taken as a corrective measure, the supervisor should remember the following basic rules:
•Uniform administration of discipline should be a major consideration. What action has been taken against other employees under similar circumstances?
•The supervisor and the employee must have the same understanding of the meaning and intent of the performance standard, standard of conduct, rule or other requirement involved. The supervisor must determine that the employee understood what was expected.
•The supervisor must ascertain whether a loose interpretation of the rules has been allowed in the past. Supervisors who choose to allow employees to bend the rules will have difficulty enforcing them. The supervisor must ensure that a violation of the standards of conduct, performance standards, job requirements, or rules is the real issue, and not personality conflicts or other factors that are not job related.
•The degree of discipline must be appropriate to the offense. Although the Florida Statutes allow agency flexibility to exercise its discretion as to the severity of the discipline to be administered, such discretion must be exercised in such a way that the “penalty fits the crime.” After all, it is the agency’s responsibility to justify and defend its actions.
5)Follow-up:
Whenever an employee has been counseled or disciplined (except for dismissal), it is important that the supervisor have follow-up sessions with the employee as needed to review progress (or lack thereof).
6)Leadership characteristics:
Supervising employees is not easy. A supervisor must, among other things, be willing to remain objective in often very trying situations.
When discipline is being considered, the supervisor must objectively review the facts upon which any discipline would be based. The supervisor must analyze the applicable statutes or rules, agency policies or directives, and be satisfied that the affected employee knew what was expected of them, and was given a reasonable opportunity to come into compliance.
The professional supervisor understands the proper use of discipline, and is prepared to take action that is fair, justified and necessary, without allowing emotions to enter into disciplinary decisions.
Past Practice
Past practice becomes an issue in several forms. An employee who is about to be or has been disciplined will sometimes raise the argument that:
•Other employees have committed the same violation and have not been disciplined.
•The particular rule or policy has always been unclear has not been enforced.
• Less severe discipline has been administered in the past.
In attempting to correct a situation that has existed for some time, management must take into account its past actions, and proceed with due regard to “fairness” and “justice” to give notice to allemployees that the agency standards of performance and conduct will be enforced. Management should be especially sensitive to the principle of past practice when considering disciplinary action.
Without sufficient warning to employees that standards will be enforced, a disciplinary action may be overturned when challenged or appealed.
Section II
Principles of Discipline
Supervisors may feel that they will never be faced with a discipline problem, or that it is useless to attempt to discipline an employee. This is a serious mistake.
A supervisor must be familiar with the job requirements of each subordinate position and the capabilities of the employees filling those jobs. Likewise, each employee must understand the job requirements and be familiar with the methods by which performance will be evaluated. Both the supervisor and the employee must be familiar with the agency’s disciplinary standards or standards of conduct. It is the responsibility of managers and supervisors to make sure each employee understands what the agency expects of them, and the consequences of a violation of the standards of conduct.
Employees should not have to work under a continuous threat of discipline. Instead, they should fully understand that, with the exception of serious offenses, they will receive counseling and adequate warning before formal disciplinary action is taken. A supervisor usually will recognize a problem when it first begins to develop, and should immediately begin counseling the employee. This is particularly applicable in cases involving unsatisfactory work performance, absenteeism, tardiness, or any other condition that could gradually and continually worsen. In certain instances such as fighting, insubordination, striking a supervisor, or use of abusive language, there may not be time for counseling.
Agency standards of conduct must be sufficiently clear to put employees on notice both as to the severity and the immediacy of discipline for various offenses. Supervisors should not hesitate to take the specified action when such offenses occur. To delay discipline raises the question of whether it was really necessary. Failing to take discipline when it is justified will create a more serious problem if and when the employee repeats the offense.
Counseling
Although counseling is not considered discipline, it is meant to help the employee recognize the mistake or deficiency, accept the standard that is required, and understand the consequences of failing to meet the standard. Counseling should be constructive at all times. The main thrust is to try to help the employee correct the problem or behavior. All supervisors should be familiar with and practice effective techniques of counseling employees. It is important that the supervisor be both objective and sincere in conducting the counseling session. A few things to remember are:
1)Be a good listener. (You can’t hear if you’re talking.)
2)Be specific as to what is expected of the employee.
3)Maintain privacy: (Never criticize or counsel an employee in the presence of other employees.)
4)Avoid being hostile or losing your temper.
5)Talk about the employee’s behavior in an objective manner, and avoid discussion of personalities.
6)Never make excuses for enforcing the rules or become defensive.
7)Be specific as to the possible consequences.
In order to counsel employees, the supervisor must first have a clear understanding of the terminology used in the agency’s standards of conduct. The supervisor must understand what actions (or inactions) constitute negligence, inefficiency or inability to perform assigned duties, insubordination, or conduct unbecoming a public employee. Many agencies specify in their standards of conduct how some of the common violations such as sleeping on the job, misuse of State property, falsification of records, “excessive” absenteeism or tardiness, threatening or abusive language are handled based upon their agency’s unique mission.
If disciplinary action is to be taken, management should be satisfied that appropriate counseling was provided and was unsuccessful, or was not considered based upon the severity of the offense. Even when the offense requires immediate discipline (without benefit of prior counseling), management must be confident that the employee was aware both of the rule and the consequences for failing to abide by the rule.
Progressive Discipline
Some agencies with rule-making authority, still utilize progressive discipline in their standards of conduct. The term “progressive” is defined in Webster’s New Collegiate Dictionary as “increasing in extent or severity.” As related to progressive discipline, this has been interpreted to mean that generally for less serious offenses the penalty will range from an oral reprimand for the first violation to a written reprimand for the second, a suspension for the third, and dismissal thereafter. More serious offenses may allow management to suspend or even dismiss for the first violation. If the penalty provides for a range of discipline, management has the discretion to determine the “degree” of discipline to administer for a particular offense. However, there must be consistency (uniformity) in applying discipline.