![The
“WHY” of
Disciplinary
Action
• Agency Relationship
• Principal’s Authority
• Principal’s Duty
• Employee’s Duty - “…usual standards expected of
an employee [to provide] honest, faithful and loyal
service in accordance with his ability”*
• *Chiodo v. General Waterworks Corp.](https://image.slidesharecdn.com/discactionpp-220225032746/85/Roots-and-practices-of-Disciplinary-Action-22-320.jpg)
Roots and practices of Disciplinary Action
- 2. First LEADERSHIP BOOTCAMP • Part I – Authority & Duties • Part II – Disciplinary Action Prerequisites • Part III - Application
- 3. Bootcamp Agenda Part I • The principle that forms the source of authority in an employment relationship • The principles that form “duties” and responsibilities in an employment relationship • Another role of a job description
- 4. Definition of Agent & Principal • An agent is person employed to do any act for another or represent another in dealings with third persons. • The person for whom such acts are done or who is represented is called the principal. • The contract which creates relationship of principal & agent is called an agency.
- 5. Agency Relationship This Photo by Unknown Author is licensed under CC BY-SA-NC
- 6. Agency When is Agency created (as of the 18th Century)? • One party (Servant) agrees that he/she will act in behalf of the other (Principal) • The Servant is subject to control of the Principal/Master • The Principal/Master tells the Servant what to do and how to do it • Both parties agree to an agency relationship “A servant is an agent…whose physical conduct in the performance of the service …is subject to the right of control by the master.” - Reinstatement (Second) Section 2(2)
- 7. Authority Granting of Power • If the principal tells the agent to do something, he gives the agent “actual authority” to do it. • Authority to conduct a transaction includes authority to do acts which are incidental to it, usually accompany it, or are reasonably necessary to accomplish it. Implied Authority • If the principal tells a third party that the agent has authority, he gives the agent “apparent authority” whether or not the principal told the agent himself he was authorized.
- 8. Tort Liability • Respondeat Superior - Courts hold principals liable for the torts their agents commit. • Principals are not liable for all the torts their agents commit. They are liable only for those their agents commit “within the scope of their employment.” (applies to volunteers too)
- 9. Origins of “Duty” in Employment • Developed along with the concept of “employment at will” • The doctrine of employment-at-will emerged in the nineteenth century in the United States in a climate of laissez-faire expansionism, social Darwinism, and rugged individualism. • It is often referred to as Wood's Rule, named after Horace C. Wood, who articulated the doctrine in an 1877 treatise Master and Servant. • Wood's view of employment relations was shared by most of his legal contemporaries • Agents owe their principal a duty of loyalty and a duty of care.* *Reading v. Regem, (1948) 2 K.B. –a principal may confiscate an agent’s earning if the agent earned through the perquisites of the job *Tarnowski v. Resop, 51 N.W. 2nd ( Minn. 1952) – all profits made by an agent in the course of an agency belong to the principal • The Restatement (Second) of the Law of Contracts – Agency was a contract of employment – definitions applicable to employer-employee relations (1958)
- 11. The Introduction of “Duty” Agents owe their principals a duty of loyalty and a duty of care – Reinstatement (Second) of Agency 1958
- 12. Reinstatement (Second) • “Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency” Duty of Loyalty • “Unless otherwise agreed, a paid agent is subject to a duty to the principal to act with standard care and with the skill which is standard in the locality for the kind of work for which he is employed to perform and, in addition, to exercise any special skill that he has” Duty of Care
- 13. Elements of Duty of Loyalty • Exercise their powers in good faith and in the best interest of the organization • Avoid conflicts of interest • In the normal course of business, treat as confidential all matters involving the organization (until there is general public disclosure or the information is a matter of public record or common knowledge)
- 14. Duty of Obedience Take action in a manner consistent with the purpose of the organization Comply with applicable state and federal laws that relate to the organization and the manner in which it conducts its business
- 15. Duty to Act in Good Faith •Obligation to act honestly in purpose and in deed. •Act consistently with the organization’s goals and values.
- 16. Authority vs Responsibility • Authority – ‘Authority’ means ‘Legal or rightful power, a right to command or to act’. Applied to the managerial jobs, the power of the superior to command the subordinate to act or not to act in a particular manner, is called the ‘authority’. • Responsibility – It is an obligation of a subordinate to perform assigned duties. It is always bonded between superior and sub-ordinate. When superior assigns any duty or work to a subordinate by his authority it becomes a responsibility on the part of sub-ordinate to perform that duty.
- 17. A Duty Creates Authority and Responsibility • A duty must be expressed either in terms of function or in terms of objectives. If a subordinate is asked to control the operation of a machine, the duty is in terms of function. But if he is asked to produce a particular number of pieces of a product, the duty is in terms of target or objective. Determination of duties in terms of objectives will enable the subordinate to know by what standards his performance will be evaluated. • Responsibility comes to an individual as soon as he accepts a job to be performed by him. • Answerability to the superiors regarding completion of the job in conformity with the directions is called accountability.
- 18. Authority, Responsibility, Accountability • Authority, Responsibility and Accountability are inter-related. Authority denotes granting of power. Responsibility indicates to satisfactory completion of obligation and accountability refers to answerability regarding one’s work and conduct. • Authority could be delegated; however, responsibility can be shared but cannot be delegated. Accountability neither can be shared nor delegated. One has to answer about his work and conduct. • The accountability arises only because there is an authority, the aim of which is to get the decision carried out with fuller responsibility.
- 19. Factors Determining the Limits of Authority External Factors: • Government rules and regulations • Collective bargaining and agreements Internal Factors: • Corporate laws and organization chart • Budgets • Policies, rules and regulations • Job description
- 20. Breakout Discussion • What principles define the root source of a supervisor’s authority? • Consider your department, your team – who is a principal and who is an agent? • Consider your job description, what statements define your authority? Your accountability? Your responsibility?
- 21. Part II – Prerequisites - Why & When Disciplinary Action Should Occur What establishes a violation or breech of the employment relationship? Who has a “duty” to address breeches of the employment relationship? The intent, effect, and perception of a policy. The employee Disciplinary Policy
- 22. The “WHY” of Disciplinary Action • Agency Relationship • Principal’s Authority • Principal’s Duty • Employee’s Duty - “…usual standards expected of an employee [to provide] honest, faithful and loyal service in accordance with his ability”* • *Chiodo v. General Waterworks Corp.
- 23. Disciplinary Action Why disciplinary action should occur When should disciplinarily occur Intent, Effect, Perception of a Policy The Company Disciplinary Policy
- 24. Why Disciplinary Action Should Occur When a supervisor assigns any duty or work to a subordinate by his authority it becomes a responsibility on the part of subordinate to perform that duty. Determination of duties in terms of objectives enabled the subordinate to know by what standards his performance will be evaluated. The objective of a duty has not been achieved and/or has not been performed as per the standards communicated.
- 25. When Should Disciplinary Action Occur Coaching has not been successful Training has not been successful Resources are not being utilized
- 26. The “Why” of Disciplinary Action CORRECT BEHAVIOR AND DOCUMENT ISSUES PREVENT NEGATIVE IMPACT ON THE ORGANIZATION
- 27. What Causes a Breech of the Employment Relationship • Standards Set by Performance and Conduct Expectations Not Met • Job Description • Essential Duties • Essential Competencies • Essential SKAO • Standards Set by Policy Not Met • Code of Conduct • Basis for Disciplinary Action
- 28. Intent, Effect, and Perception of a Policy • The “intent” of a policy is its goal – how employees should act or perform – how to address employees that do not act or perform as expected – to obtain consistency and designate severity of punishment • The intent of a policy does not come into fruition until it is put into practice • The effect of a policy is “how does it actually work in practice” • Perceptions of a policy include, is it fair? Is it consistently applied to everyone the same? How well is it accepted?
- 29. What is Employee Discipline? Discipline is not punishment – it is an opportunity to learn Negative sanctions will only succeed when: • the employee values what is taken away or fears what is threatened. • the employee sees the sanction as fair, and consistent with the "offense". • the employee acknowledges and respects the right of the manager to impose the sanction. Unless these three elements are in place, employees respond to punishment with resentment, and counter-attacking, either covertly or overtly.
- 30. Discipline is an Opportunity to Learn Consider discipline in its original sense, as an opportunity for the employee to learn • Discipline comes from discipulus, the Latin word for pupil or disciple The traditional notion of disciple is of “a person who learns from one s/he follows.” Discipline, in this approach focuses on what the employee must learn in order to bring his/her behavior in line with the needs and expectations of the organization.
- 31. Discipline Is Not An I-You Confrontation Discipline is not something done to an employee, it is something done with an employee. Consider discipline as requiring you and the staff member to work together to solve a problem. The fundamental task, when possible, is to create a situation which encourages the staff member to work with you to identify causes of problematic behavior, and to take action to correct those problems. Discipline needs to be a "we process"
- 32. Too Late, Too Late • Do not be TOO slow to respond to an emerging issue or problem. There are several reasons for this: • tendency to see an emerging problem (e.g.. a first instance), as a quirk, a fluke, or accident, and something not worth addressing. • desire to have harmony • perception that discipline is a cause of disharmony • simple dread
- 33. Too Late, Too Late • It is very important that inappropriate behavior or actions in the workplace be, at minimum, noted, and the fact communicated with the staff member, right at the first occurrence. • Delay is problematic in that it sends a message that undesirable behavior will be accepted or even not noticed. • Delay can have an adverse effect on a supervisor later, if the problem increases in frequency and intensity so it cannot be ignored. • When a problem is allowed to grow, an emotional reaction toward the employee develops that makes constructive interaction difficult. • Addressing an occurrence early need not be a lengthy difficult discussion, particularly if the event is relatively minor. The lengthy, unpleasant discussions tend to occur as a result of not addressing problems early on.
- 35. Missing Root Causes • In some cases, a problem employee may require a hard approach particularly if they have the skills to do what is desired but have not been applying the skills for one reason or another, related to motivation. • Sometimes an employee is not succeeding because they lack the skills (even if they are not aware of the skill deficit). • Sometimes an employee is not succeeding because they have underlying personal or psychological problems. • Sometimes an employee is not succeeding because the system in which s/he works is not set up to engineer success.
- 36. Discuss- “When” The Company Employee Discipline Policy States that Discipline Should Occur • What actions should take place before disciplinary action is taken? • What is the purpose of the Supervisor’s Record of Discussion form? • What type of issues should training not be used for? • Which employee performance deficiencies are preventable? How?
- 37. Before You Take Disciplinary Action Can you attest to this happening… The employee knows and understands that - employees are expected to meet acceptable performance standards and comply with policies and procedures at all times. Did you… Supervisors shall coach and counsel employees to ensure employees understand these expectations and to provide necessary correction and training. If you can substantiate you did the above, then you can do this… • When an employee engages in unacceptable conduct or fails to meet acceptable performance standards, disciplinary action may be imposed.
- 38. Prerequisites to Disciplinary Action Performance standards are published and known by the employee The company policy violated was known by the employee Did the employee have the KSA’s when hired or promoted? Was the employee trained and the KSA’s acquired and demonstrated? Did you notify the employee of the performance or conduct problem(s)? Did you coach the employee and attempt to improve his/her performance or conduct?
- 39. Quick Quiz Where do performance standards for your employee’s come from? Which company policies set standards? What causes a breech of the employment relationship? Who puts a policy into effect? When does a work responsibility start? True or false: Disciplinary action usually works on an employee that is not motivated. What is the difference between progressive discipline and the opportunity to learn? Which comes first, coaching or progressive discipline?