Assessing Discipline and the Alternatives

What objectives should shape the decision to impose sanctions and the level of the sanctions? Rehabilitation? Punishment? Deterrence? Correction? To minimize the negative impact on employer-employee relationships and productivity, a workplace disciplinary system should be, and should be seen to be, fair, impartial, and efficient. Increasingly, management and unions are looking for ways to craft sanctions that better fit their corresponding conduct. Is it possible for employers and unions to work co-operatively in determining a penalty without violating the worker’s right to union representation? When are alternatives to discipline appropriate? Lancaster’s panel of experts will review the latest cases on assessing discipline and discuss ways to successfully and strategically implement alternative measures in the workplace.

• Investigating Misconduct: Are employees entitled to remain silent in the face of questions from the employer? Is a union representative entitled to be present and participate at an investigative or disciplinary meeting?
• Evidence: What is the burden on an employer to prove a grievor’s misconduct? Does the level of proof depend on the seriousness of the allegations? Where do issues of credibility arise and how can they be resolved?
• Relevant Factors: What factors are relevant in assessing discipline and how much weight should be given to each factor? (e.g. nature of offence, culpability, length of service, disciplinary record, correction, deterrence, rehabilitation, punishment, provocation, aberration, acknowledgment, remorse, consistency of treatment, candour, risk of recurrence, post-discharge evidence). How is proportionality in penalty ensured? What details of an employee’s past disciplinary record can be taken into account in imposing discipline? What is the impact of disciplinary “sunset” provisions?
• Permissible Penalties: What kinds of disciplinary penalties are out of bounds, and why? When is demotion appropriate, and when is it not? How do arbitrators treat “zero tolerance” policies? When is such a policy likely to be upheld/rejected? Is it appropriate for health and safety violations? Sexual harassment? Alcohol or drug use? Are different approaches warranted in different industries? When addressing the seriousness of the offence, are there any types of misconduct that will always warrant discharge? How is discipline for theft assessed? Criminal activity? Breach of a safety rule? Uttering threats? Bullying and harassment? What factors mitigate penalty in the case of fighting or violence in the workplace?
• Loss of Trust: When will arbitrators award damages rather than reinstatement? How often does this occur? How is quantum determined?
• Approach of Arbitrators: How do arbitrators differ in their approach to the assessment of discipline? What proportion of penalties is upheld at arbitration? What proportion is reduced to a lesser penalty?
• Automatic Termination and Last Chance Agreements: Are automatic termination clauses and “last chance” agreements enforceable? How should they be framed so as to comply with human rights legislation prohibiting discrimination based on disability?
• Progressive Discipline: What can be done with the worker who won’t follow the rules? Is progressive discipline the correct approach? What are the consequences of a failure to apply progressive discipline? What is a “culminating incident” and what is its importance in discipline and termination?
• Alternative Discipline: What is alternative discipline and what are the potential benefits over traditional discipline? What are examples of alternative measures and when should they be imposed? Public apology? Having the employee research an issue related to the misconduct and then educating co-workers? Additional unpaid shifts? Is counselling an effective alternative? How can management and the union work together to ensure the success of an alternative disciplinary system?