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Discipline in Disguise?: Drawing the line between valid discipline and retaliation

Thursday, July 11, 2019, 12:30 pm - 2:00 pm EDT



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Moderators


Mark Asbell

Arbitrator/Mediator


Speakers


Christopher Perri

Union Counsel
Cavalluzzo
Jennifer Weston

Employer Counsel
Barteaux Durnford

Issues

For an aggrieved employee, every adverse management action can be perceived as an act of reprisal or "payback," but can seemingly innocuous management functions such as scheduling, work assignments, and performance management be found to be retaliatory? Is discipline essentially "off-limits" after an employee has filed a grievance or complaint or has otherwise sought to enforce a right? In this session, experienced counsel will examine the distinction between valid discipline and reprisal, addressing issues such as:

  • Establishing reprisal: Generally speaking, what is the test to establish that conduct is retaliatory? Who bears the onus of establishing reprisal? When will the onus relating to reprisal be reversed, requiring that the employer demonstrate that an action was not retaliatory? Does the answer depend on the legislative framework?
  • Intention: Will a complainant be required to prove that the employer acted with retaliatory intent in order to substantiate a complaint? Can such intent be inferred based on an assessment of the facts? What do adjudicators look at in determining whether an action was motivated by retaliatory intent? Does retaliatory motive need to be the sole motivation for the conduct at issue, or is it sufficient if it forms only part of the motive? Can hostile intention turn what would otherwise be valid management functions, such as scheduling, work assignments, and close supervision, into retaliatory conduct?
  • Demonstrating valid motives: What must an employer establish in order to defeat an inference of reprisal? What evidence can an employer provide to demonstrate that a disciplinary measure was validly imposed rather than an act of reprisal?
  • Suspect discipline vs. justifiable action: What are some common "red flags" that could raise a suspicion that managerial action was retaliatory in nature? Can the timing of events, such as action taken shortly after an employee has filed a grievance or complaint, give rise to such an inference? How important is timing when assessing conduct?
  • Imposing discipline: Does the prohibition against retaliation effectively prevent an employer from disciplining an employee who has filed a grievance or human rights complaint? What steps should an employer take when investigating complaints or deciding whether to impose disciplinary measures in order to ensure that retaliatory or improper motives do not form a part of the decision? Are there any measures that employers can put in place to demonstrate that a decision to discipline or disciplinary measures were valid and not an act of reprisal? What role does progressive discipline play in this analysis?

Additional Information

MATERIALS
Valuable, up-to-date materials and case summaries will be available for downloading from our website. Each audio conference is accompanied by a PDF of concise summaries of the cases discussed.

AUDIO FILES
Audio conference MP3 files are available for $260. Those who have purchased the live audio conference may purchase the corresponding downloadable audio MP3 file for the discounted price of $160.

The recorded MP3 file and materials are available for download one business day after the live audio conference. After purchasing, you will receive an e-mail with instructions on how to access and download the audio conference MP3 file and materials by visiting My Account and selecting Order History. For audio file purchases for upcoming audio conferences, once the MP3 file is available through our site, registrants will receive an update e-mail informing them that the links are now ready.

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