Dealing with Discharge and Discipline: Progressive discipline, mitigating and aggravating factors, disability-related issues, union representation, post-discharge rehabilitation

A workplace disciplinary system should be fair, impartial and proportionate. In this workshop Lancaster’s experts will provide guidance on establishing and implementing just and effective responses to misconduct. They will highlight good practices in drafting policies and address the relevant factors to be considered in determining appropriate discipline, among other issues. Questions to be discussed include:

• Progressive discipline and zero-tolerance policies: What are the key elements of progressive discipline? Does a progressive discipline policy need to be included in the collective agreement to be required? What are the consequences of failing to apply progressive discipline? What kinds of offences are so egregious that a zero-tolerance approach is justified - Dishonesty? Theft? Violence? Health and safety violations? Alcohol or drug use? How do arbitrators treat "zero tolerance" or automatic termination policies?
• Mitigating factors: To what degree do the following considerations mitigate the misconduct and support a lesser penalty: Seniority? A dire financial situation? The lack of a prior disciplinary record? Admission of guilt? Acceptance of responsibility? Candour? Remorse?
• Aggravating factors: What factors will call for a more serious penalty or discharge: a prior history of misconduct? A short employment history? Misconduct which involves dishonesty or a breach of trust? Misconduct in which the employee benefited financially? How will an employee's lack of remorse or unwillingness to accept responsibility affect an arbitrator's response to discharge? Is a lack of candour by an employee in the investigation or arbitration process a factor which should be considered in imposing discipline?
• The impact of disability: If an employee's serious misconduct is caused by a disability, how should the employer respond? When will termination of such an employee be warranted? How should the "hybrid approach," which distinguishes between culpable and non-culpable factors, be applied when determining whether discipline is appropriate?
• Representation during the discipline process: Does an employee's right to have a representative present at a meeting depend on whether the meeting is investigatory or disciplinary? Is an employee entitled to choose a particular union representative? Will the disciplinary action be void if the employee’s right to representation was not respected?
• Post-discharge evidence: When will an arbitrator consider medical evidence obtained after termination which shows that an employee was suffering from a disability at the time of discharge? When will post-discharge evidence of rehabilitation or recovery be admitted?

MATERIALS
Includes materials, with case summaries and analyses, prepared by Lancaster's legal staff.