Dealing with poor performance is always a difficult proposition. If you fail to remove an employee during their probationary period, you are endorsing them, and essentially stating you find them competent to perform the duties of their position. After they have completed their probationary period, employers must work hard to correct employee performance issues before resorting to discipline.
In the case of AFSCME, Council 65 and City of Rochester, the city attempted to issue a five-day suspension to an employee working in the Assistant Clerk title for ten years, following several performance issues. The grievant received no discipline during the first five years of her tenure, but began receiving corrective actions from the employer in early 2020, including a performance improvement plan, two written reprimands, a one-day suspension and a two-day suspension. The grievant grieved none of those disciplinary actions.
In January 2023, the grievant received notice that she would possibly receiving additional disciplinary action for poor performance, including errors in the “performance of several routine job functions.” She was given the opportunity to explain her performance in writing to the employer prior to the issuance of discipline, which she did, stating she was not made aware of the performance deficiencies included in the notice. The employer issued a five-day suspension shortly thereafter, noting several deficiencies that were not included in the pre-disciplinary notice provided to the grievant. This was an important fact in the arbitrator’s decision.
In one of Arbitrator Greg Failor’s first decisions, he laid out his analytical framework for disciplinary matters:
- Did the Employer prove by a preponderance of the evidence that the Grievant engaged in the conduct alleged by the Employer that led to the decision to discipline the Grievant?
- Did the discipline imposed by the Employer and the disciplinary process used by the Employer comport with the just cause standard of the labor agreement?
Arbitrator Failor called the employer’s approach to performance improvement “virtually a textbook example on how to deal with an employee’s performance deficiencies in a unionized environment.” The arbitrator also found that the three incidents that the employer relied upon for discipline did, in fact occur. The arbitrator found that there were no issues of disparate treatment to which the union could compare the grievant’s discipline.
The City’s failure, however, to bring up three of the six performance issues for which it was considering disciplining the grievant in its pre-disciplinary notice was an issue. While the employer argued it addressed the three remaining concerns at a separate meeting, the arbitrator found that those incidents should have been addressed at the point they were discussed, and not filed away to use for future discipline. “Once an employer is aware of an incident or incidents that would justify the imposition of discipline it is incumbent that the employer act,” said Arbitrator Failor. As a result of this deficiency, he reduced the discipline from a five-day suspension to three days.
This is an important case for several reasons. First, it gives us a framework for how an employer should address performance-related deficiencies from long-term employees. Second, it shows us the pitfalls that can result from missed steps in the performance management process. Third, it shows us how a newer arbitrator is going to be analyzing discipline cases going forward. If you, or your organization, need assistance with managing employee performance, or disciplining employees after your efforts have failed, contact Wiley Reber Law, for discipline advice that works.