September 22, 2011

In this audio session, a panel of experienced counsel will walk through ten key steps in determining an appropriate response to apparent workplace misconduct. They will address issues occurring throughout the disciplinary process, such as determining whether the behaviour stems from an underlying disability, the proper conduct of investigations and meetings, and what factors to consider in assessing a proportional penalty.

  • Conduct a thorough investigation: What are the key elements of an effective investigation? What must an employer do and what should it refrain from doing? What are the union’s obligations to an employee being investigated?
  • Assess if the behaviour is connected to a disability: Has the employee provided an explanation for his or her problematic behaviour that relates to a disability? Even if the employee hasn’t explicitly linked the misconduct to a disability, does the employee’s behaviour or actions indicate that a disability might be at play? Is there a nexus between the problematic behaviour or inadequate performance and the disability?
  • Explore the feasibility of accommodation: If disability is a factor in the misconduct, what can the employer, employee and union do to accommodate the disability? What kind of accommodation is required by human rights legislation? By the arbitral jurisprudence? “Best-practice” corporate policies?
  • Evaluate the severity of the misconduct or poor performance: Does the severity of the offence alone meet the “just cause” standard? Is the workplace particularly safety-sensitive? Did the employee’s actions betray his or her position of trust?
  • Check for extenuating or aggravating circumstances: Was the misconduct inadvertent, or was it deliberate or reckless? Was the employee provoked into the behaviour? Did the employer have a record of not enforcing workplace rules which may have been broken?
  • Check the employee’s discipline record: Does the employee otherwise have a clear (or reasonably clear) disciplinary record? Is this offence part of a pattern of behaviour or a seeming aberration? What is the impact of collective agreement sunset provisions relating to discipline? To what extent can prior counselling [verbal or written] be relied upon?
  • Look at the options available under a progressive discipline policy: What are the features of an acceptable progressive discipline policy (and what cannot be part of a discipline policy)? In what (rare) circumstances will progressive discipline be displaced? Does federal legislation impose any additional constraints on discipline for employees of federally-regulated employers?
  • Hold a disciplinary meeting: What are the essential elements of a disciplinary meeting? What are an employee’s rights when summoned to a disciplinary meeting? Are union representatives entitled to be present? What are the union’s obligations in representing an employee?
  • Assess appropriate discipline in light of all the circumstances: What roles do correction, deterrence and rehabilitation play in determining appropriate discipline? Is the discipline consistent with the discipline imposed on other employees for similar misconduct? Has the employee shown rehabilitative potential by expressing remorse or has he or she been evasive or deceitful? Should the discipline be reduced because of the employee’s cooperation and/or remorse?
  • Communicate the final decision regarding discipline to the employee: How detailed should an employer’s reasons for imposing discipline be? Must the employer communicate its decision to the union? Is it appropriate for the employer to communicate its decision to other employees? What should the employer’s policy be regarding communicating an employee’s disciplinary record to other employers?

This audio conference has been approved by the following:

  • The Law Society of British Columbia for 1.5 Continuing Professional Development hours.
  • The Law Society of New Brunswick for 1.5 Continuing Professional Development hours.
  • The Law Society of Saskatchewan for 1.5 Continuing Professional Development hours.
  • This 1.5 hour program can be applied towards 9 of the 12 hours of annual Continuing Professional Development required by the Law Society of Upper Canada. Please note that these CPD hours are not accredited for the New Member Requirement.