Ask a Lawyer: Should HR be disciplined for meting out the wrong level of punishment?

HR leaders are the custodians of discipline – but what happens when they get it wrong?

Ask a Lawyer: Should HR be disciplined for meting out the wrong level of punishment?

HR leaders are the custodians of discipline. They mete it out, they offer constructive criticism and ensure problems don’t repeat themselves. But what happens when you misjudge the level of discipline and land themselves in hot water?

We spoke to Stephen Wolpert, Partner at Whitten & Lublin – and speaker at HRD Canada’s upcoming Employment Law Masterclass 2018, who gave us his take on the contentious issue.

“There’s a lot of context to this type of question, and it needs serious considerations from HR leaders and employers alike,” prefaced Wolpert.

“I think an HR leader can be disciplined if their penalty was too harsh, because in that context the penalty could seem like bullying. On the other hand, they can be disciplined for being too lenient – because the problematic behaviour in question could be seen as having been condoned by the company.”

There are lots of cases that deal with management who lash out unthinkingly. Perhaps an incident has occurred to which an employer immediately calls the employee into their office, without consulting HR, and disciplines them.

“Firstly, I want to preface that I’m not talking about how the discipline in delivered,” added Wolpert.

“If you have a meeting with someone and you tell them they’re being warned, but in a confrontational way – that’s a terrible idea, regardless of the actual level of discipline. So, I want to focus on the actual scale of discipline being meted out.

“In legal terms, what could an employer pin on the HR person for using the wrong level of discipline? In some cases, this could constitute a breach of contract, or a failure to fulfil obligations under the employment contract signed. It could also be summarized as incompetence or insubordination.”

There are a few factors that should be considered before a HR practitioner is disciplined, Wolpert told us. The first one should assess whether the HR leader was the only one who meted out the wrong punishment, or where others involved in the decision making. Meaning, if multiple people missed the mark, all should face the same consequences.

“The second factor,” he added, “is finding out whether someone is trying to apply hindsight. Often discipline is carried out in circumstances where you possess imperfect and incomplete information meaning when other aspects come to light, opinions could change retrospectively.

“I would also ask just how clear the company policies on discipline are. A lot of organizations have codes of conduct which are often vague by design and open to interpretation. That makes it hard to point at a HR manager and insist they use the wrong level of discipline – because, what is the correct level?

“While I do think it is possible for HR managers to be disciplined for meting out the wrong level of punishment, I can’t think of a good context where someone would be fired for cause over it.”

At HRD Canada’s upcoming Employment Law Masterclass 2018, in Toronto on 10 September, esteemed speakers such as Wolpert will be on hand to offer you practical advice and professional guidance on navigating all legalese jargon. Book your place now.



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