07/15 2019

Employment in religious entities: disciplinary sanctions

Today’s article tackles a rather sensitive topic: employee disciplinary sanctions. Indeed, within religious entities, or “RE’s”, the path forward is not always clear when faced with an employee or an associate whose conduct falls short of their duties of loyalty and good faith.

RE’s often use a more “mom-and-pop” style management. Therefore, it is possible that the relationship tying employer to employee is a less formal one than in other settings, such as a more “typical” business.

One need also consider that RE’s, especially LREE’s (legally recognised ecclesiastical entities) are true legal entities, and thus labour laws apply to them as with any other business.

Therefore, it is always advisable to align the employment relationship with one’s own staff to those regulations, in order to avoid potentially negative consequences for the RE’s (such as a lawsuit ending with the religious entity being found liable for damages).

This course of action should encompass the disciplinary system against employees who fail to perform their assigned duties, or who disobey employer instructions, rendering the employment relationship itself either untenable or futile.

It is well-known that the employer has a range of options with respect to the employee, such as the authority to monitor, supervise, and manage the employee, and the employee has a duty to report to the employer.

Such power, however, could end up being merely “on paper”. To make sure the employer holds actual sway over the employee, there must be a further power: the power to discipline.

The importance of the disciplinary action under the law

Having clarified that the power to levy sanctions against a negligent employee is an arrow in the employer’s quiver, one must further consider that there are rules regulating the exercise of such authority.

These rules must always be followed, even in the face of gross ineptitude or negligence by the worker. After all, where the rules are not followed, the employee may file suit, petitioning the labour magistrate for redress and having the sanction overturned. In so doing, the employee, thanks to this formal cavil, not only sidesteps the sanction, but the employer might end up being liable for litigation costs, as well.

Just think of the employee who, caught stealing, is fired on the spot (orally), and not in writing as required by the law, lest it be void.

Company or religious house rules

As we have seen, the power to discipline is a general power of the employer, one that may always be exercised where the criteria for its exercise are met.

Moreover, the shrewder RE’s may shore up their position – one already protected by the law – with an element of additional compliance. The first useful step toward better management (including from a disciplinary perspective) of the employment relationship is having proof that the worker is familiar with the company or religious house rules.

It is therefore a good idea for RE to have formal rules and regulations, and for those rules and regulations to be posted in a location that is always open to the employee (on the bulletin board, or the entrance to the religious house).

Furthermore, upon hiring, a good idea is to obtain a signature (on the hiring letter, for example) to acknowledge receipt and review of the rules.

Finally, it is absolutely advisable to post them on the RE’s website, if it has one.

Types of sanctions

Once the rules have been generated, the employer will, for its part, have the further option to properly exercise disciplinary power, depending on the infractions committed, which may be levied based on the severity of the statutory or rules violation.

To wit, one can generally break down potential sanctions as follows:

  • verbal warning
  • written warning
  • fine (paid in salary hours – for example, a four-hour fine will be equal to the pay earned by the worker for four hours. The employer will not pay those four hours, and will instead withhold them).
  • suspension (unpaid leave for a maximum of ten days)
  • termination (with or without notice)

As one can see, these sanctions range from minor to major. The measure of the sanction’s severity depends on the infraction committed by the employee. Thus, for example, a verbal warning will be used for minor infractions by the worker, whereas theft may lead to the most serious sanction of termination without notice.

Sanction procedure

Once employee conduct warranting sanction is discovered, what steps should the religious entity take?

In these cases, one must pay attention to the procedure with which the sanction is applied to the worker.

Indeed, as a rule of thumb, before meting out the sanction, the employer must identify the restricted conduct to the employee in writing, as soon as the infraction is discovered, if noted.

At that point, the employee is given five (5) days to provide a response to the charges alleged by the employer (one might say the employee has the opportunity to “defend” himself or herself).

Only once the worker has submitted his/her responses in writing (or upon the expiry of the five days, where the worker chooses not to submit any response) may the sanction be levied, once again in writing.

Following proper procedure is of critical importance; in the absence of proper procedure, the worker may appeal the sanction in court. Thus, ironically, one would not only see the effect of the sanction dissipated, but one might be ordered to pay court costs as well.

Domestic workers

As is often the case for RE’s, determining the nature of the personnel one has engaged (and thus whether the RE’s employees might be classified as “domestic workers”) is not always easy. Otherwise, given the specific activities carried out onsite at the religious entity, they may be bona-fide employees of a business.

That distinction is important with respect to disciplinary sanctions as well, in that the manner of levying a sanction changes depending on whether the employee is a domestic worker a/k/a “COLF”.

Indeed, for any domestic worker, one can say that the work relationship is predicated on the trust placed in a specific person, rather than that person’s work characteristics – although those are necessary as well.

That difference is highlighted in the applicable law as well. Indeed, for domestic workers, the principle of “at-will employment” prevails, precisely because the work relationship established with that type of worker (domestic worker) is more personal and less “business-like” in nature.

On the other hand, the various sanctions noted above remain applicable to RE employees who carry out, for example, hotel/restaurant operations.

Moreover, for domestic workers as well, one must pay close attention to any notice periods in instance of termination. After all, these are established to protect the worker who, for example, lives with the family or onsite at the RE. Indeed, sixty (60) days’ notice are required for terminating a worker who lives in an independent residence provided by the RE.

In this case, once again, there are protections for the employee, albeit less formalised than those for ordinary workers.

Naturally, the religious house’s rules will assist the RE in any dispute or termination with an undisciplined worker that is not particularly amicable.

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If you need a hand with developing a set of rules and regulations, or in managing the work relationship with a “difficult” employee, please do not hesitate to contact us. We have, for years, been helping Congregations with these issues to find a peaceful resolution to any pending or threatened dispute. Write us at info@dikaios.international or ring us on +39 06 3671 2232. We are here to help!

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