Preparing a Winning Discipline Case

Transcription

1 Preparing a Winning Discipline Case Tracy Buron Senior Human Resources Analyst Sacramento Housing & Redevelopment Agency I. Introduction and Background This paper describes the process I developed for preparing discipline cases at the Sacramento Housing & Redevelopment Agency (). has utilized this process for four years with great success. In that time, twenty-two discipline cases were resolved without arbitration. This success comes from the procedure I developed emphasizing the careful response, investigation and detailed attention to be given matters involving the discipline of employees. This procedure assures that everyone involved understands the how, where, why and what of the case. It insures that all parties involved including Agency Management, unions and employees, know their roles and understand that this procedure will provide a fair and consistent outcome. s employees are represented by an Employees Association and the American Federation of State, County, and Municipal Employees (AFSCME). The steps in our process are: Recognizing the Employer s Responsibility Documentation Fact-Finding Investigation Fact-Finding Review/Results Skelly Review Hearing Skelly Officer Recommendation Appeal Process Preparing for Arbitration II. Recognizing the Employer s Responsibility The Employer is responsible for providing a safe and reasonably desirable work environment. If an employee behaves in a manner that creates an unsafe or uncomfortable environment for other employees, the Employer is responsible for correcting the situation. Some managers are not comfortable dealing with staff behavioral issues, misconduct or poor performance. Nevertheless, if misconduct is ignored, the lack of prompt remedial action usually makes matters worse. Further, lack of action has a negative effect on morale, brings animosity towards the offending workers and managers and can lead to turnover and discrimination complaints. When allegations of workplace misconduct surface, quick, fair and equitable action is required. Page 1

2 Labor Relations Professionals are required to ensure that the employee s rights are not violated when the Employer takes action to reduce the Agency s liability. All dealings must be carried out with fairness and equality and within the applicable laws. To fulfill this purpose, first understand the meaning of discipline in Labor Relations. Merriam Webster defines discipline as, a training that corrects, molds, or perfects the mental faculties or moral character. To learn and to teach is to discipline. With this in mind, when is discipline appropriate? Discipline is not about punishing the employee but correcting bad behaviors. The role of Labor Relations in discipline cases is not about taking sides; rather it is about obtaining the facts to ensure that if discipline is necessary it is fair and consistent. III. Documentation In addressing misconduct or poor performance issues, some employers fail to address the issue promptly and properly document the facts. This is an important aspect of a manager s role, yet many managers feel they don t have time to document their employees performance when, in fact, the need to address misconduct and performance deficiencies in the workplace on a day to day basis is the reason they are managers. Effective Performance Management lays the foundation for managers to clearly establish at the outset, critical job duties and direct employees to perform them. First managers identify the critical job functions. Then they identify the performance standards for these functions. A manager is responsible for teaching employees how to do the job. The employee must understand the manager s expectations and the consequences of failing to meet performance standards. If a reprimand is issued that merely documents a performance problem without pointing to the consequences of failure to improve, the discipline will lack the teeth necessary to meet due process guidelines. When someone as mastered that job duty, what does that look like? What does poor performance look like? How do you measure it? What are the consequences of failing to meet performance standards? While performance standards are more measurable and in the control of the employer, behavioral problems including employee misconduct, insubordination, negligence and poor attendance are more difficult to deal with and are generally in the employee s control. In addition to properly documenting poor performance, each organization should have a thorough and comprehensive investigation process to ensure that the employee s rights are not compromised and that there is consistency in dealing with employees. IV. The Fact-Finding Investigation Employers who attempt to manage employees without following a fair and progressive system for administrating discipline will most likely lose an arbitration award because they failed to properly investigate the misconduct prior to issuing discipline. What employers are missing is apparent but at the same time obtrusive providing an Page 2

3 opportunity for the employee to express his/her side of the story, which many times will reveal the relevant evidence necessary to proceed with the discipline. When a manager reports employee misconduct, the first step is to gather signed statements of facts of the alleged misconduct from managers and witnesses. After reviewing the statements, an investigation is launched. The accused employee is sent a notice of fact-finding that information is being collected to corroborate the misconduct. This notice reaffirms the employee s right to representation at the meeting. Dependent on the seriousness of the misconduct the employee may be placed on paid administrative leave pending the results of the investigation. At this point, the Agency decides whom to interview and prepares separate factfinding questions for each witness and the accused employee. All interviews should be recorded and transcribed to preserve the statements made in the interview. After all interviews are complete, the employee who is the subject of the investigation is interviewed. This interview is last because all the pertinent facts are available and the subject employee then has the opportunity to confirm or rebut the facts and identify missing elements. The approach in this interview should be investigative, not adversarial or accusatory. With a more relaxed approach, more information may be obtained. After the initial investigation, further analysis needs to be conducted in light of any new facts gathered during the interview with the employee to examine the context within which the alleged misconduct occurred. At this point an evaluation is made regarding: Did the employee violate an Agency Rule, Policy or Procedure? Was the rule, Policy, or Procedure in accordance to the employees MOU? Was the employee aware of the Rule, Policy or Procedure or should have the employee been aware? Was the Rule, Policy or Procedure consistently adhered to and enforced by the employer? How have other employee s under the same circumstances treated? What is the appropriate level of discipline for the misconduct at the employees is accused of? The answers to the above questions are incorporated to create a timeline of events, carefully dissecting each fact discovered and reviewing the evidence of alleged misconduct. V. The Fact-Finding Review/Results After a thorough and complete review of the facts a formal record is made of the appropriate charges gathered during the interviews. Then the charges are listed and the disciplinary action is drafted. If the action results in a suspension, demotion or Page 3

4 discharge, the employee will be given an intent to discipline notice and the option to be heard at a Skelly hearing (pre-disciplinary hearing) or given an option to respond to the intent of discipline within 5 (five) business days in writing. VI. The Skelly Review Hearing As stated in Skelly v. State Personnel Board (1975) 15 Cal3d 194, the California Supreme Court ruled that as part of due process, public employees are entitled to certain procedural safeguards before discipline is imposed against them. 1 A Skelly Review Hearing includes: 1) Notice of the disciplinary proposed action 2) A statement of reason therefore; 3) A copy of the charges and materials upon which action is based 4) The right to respond, either orally or in writing, to the authority initially imposing the discipline A Skelly Review Officer is selected. This person is typically a department head or upper level manager able to objectively hear the employee s response to the proposed discipline. It is important the Skelly review officer be impartial. The standards set forth by the law define impartiality as: a) not having an investment in the outcome, b) not a potential witness, c) have no role in initially recommending or investigating the matter or c) other reasons involved in the challenge 2. A Senior Human Resources Representative also is present at the Skelly hearing to take minutes and ensure correct conduct is maintained. The Skelly Review Process is not intended to be a formal hearing of all the evidence gathered during the fact-finding investigation. The main purpose of the Skelly hearing is to allow the employee to present new evidence that may help his or her case. The main role of a Skelly Review officer is to evaluate whether or not there is reasonable grounds for believing the employee engaged in the alleged misconduct and the appropriate discipline is appropriate. The Skelly Hearing is intended to provide a fair and just hearing, it is important, before the hearing, to give the employee a Skelly Packet that includes all evidence, transcripts, or anything used to formulate the charge(s )against the employee. The Skelly Office should also be furnished, in advance of the hearing, the Skelly Packet to prepare for possible answers to questions posed by the employee during the hearing. 1 Skelly involved an employment termination of a permanent civil service employee. Subsequent decisions have extended the Skelly doctrine to lesser disciplinary actions. See e.g., Ng v. California Supreme Personnel Bd. (1977) 68 Cal.App.3d. 600 (demotion). It applies to dismissal, demotions, and suspensions, but not to so-called informal discipline, such as reprimands, warning letters or oral warnings (It also does not apply to probationary employee or MPP employees, because they d not have a property interest in continued employment, unless the employment actions is based on conduct which stigmatizes reputation, seriously impairs the opportunity to earn a living, or seriously damages standing in the community. Lubey v. City and County of S.F. (1979) 98 Cal.App.3d. 340, Taylor v. Hayes (1974) 418 U.S. 488, [41 L.E.2d 817]; Williams v. County of Los Angeles (1978) 22 Cal. 3d. 731; Civil Serv. V. San Francisco Redevelopment (1985) 166 Cal.App.3d 1222, 1227; Mennig v. City Council of City of Culver City (1979) 86 Cal.App.3d 341; Anthony G. Gough (1993) SPB Dec. No Page 4

5 VII. The Skelly Officer Recommendation After the Skelly Review Officer has heard the employee or inspected any new evidence and/or facts introduced by the employee, the officer makes a recommendation as to whether the disciplinary action should be sustained, modified in some manner or rescinded. The role of the Skelly Officer is not to proxy his/her own judgment with respect to the discipline but to render an impartial recommendation based only on the facts in the Skelly Packet and evidence and/or statements by the employee as to whether there are reasonable grounds to justify the proposed discipline. After the hearing the Skelly Review Officer promptly submits his/her written recommendation. The employee is notified of this recommendation. The Agency may then, if it so chooses, move forward and serve the discipline on the employee. VIII. The Appeal Process If the outcome of the Skelly Review results in discipline, the employee will still have the option to appeal it in accordance with the contract provisions in the MOU. If the appeal is not resolved by the formal appeal procedures of the MOU, the employee may be referred to arbitration by his/her union. IX. Preparing for Arbitration The Arbitrator s role is to be a neutral decision maker who considers the evidence submitted by the parties and makes the final decision. It is not the arbitrator s role to independently gather information or investigate the issue in support of either side s position. The Arbitrator should be provided all written statements and documents relating to the grievance including all copies of transcripts from recorded interviews. The arbitrator must make the final decision based on what has been presented at the time of the hearing. Both parties should come fully prepared to explain and support their position and to have all documentation and witnesses organized and ready at the hearing. Although the Arbitrator does not expect the representatives of either side to be attorneys, there will be an expectation that the case be presented in an organized and efficient manner. Witnesses with information about the case should be available to testify at the hearing. X. Conclusion By following the process I ve described, it is my hope that other professionals will find these procedures useful even though they may appear time-consuming and perhaps costly. However, these are prudent measures that could save an Agency Page 5

6 thousands of dollars in back pay and damage awards, legal fees and related costs and are therefore worth considering. Tracy Madeleine Buron Senior Human Resources Analyst Sacramento Housing & Redevelopment Agency th Street, Sacramento CA Page 6