October 17, 2013

Every day, employers may deal with a range of challenges such as workplace conflict, employee misconduct and unsatisfactory performance. It is often difficult to determine whether counselling or discipline is the appropriate response and when operational decisions or counselling might cross the line into grievable discipline. In this audio session, a panel of experienced counsel will explore the issues raised by management responses to unacceptable performance or conduct in the workplace. Topics to be discussed include:

    • Counselling and operational decisions versus discipline: How does the arbitral caselaw distinguish counselling from disciplinary action? When are meetings, discussions or letters considered to be disciplinary? When are transfers or changes in job duties considered to be disciplinary?
    • Assessing the appropriate response: When will counselling an employee be more appropriate or more effective than discipline? Should non-culpable performance problems and absences always be addressed through counselling or are there situations in which discipline is appropriate? What factors are relevant in assessing whether counselling or discipline is appropriate? What role do employer policies and practices play in making the appropriate decision in response to misconduct or poor performance? How important are correction, deterrence and rehabilitation in deciding between counselling or discipline? What types of performance issues must an employer accept?
    • Exploring the possibility of accommodation: Does the employer have a duty to inquire as to whether an employee experiencing performance or attendance problems needs accommodation because of a disability or family status? What if the employee provides an explanation for his or her problematic behaviour that suggests a disability but does not explicitly identify a disability or need for accommodation? If disability or family status is a factor in inadequate performance or attendance, what can the employer, employee and union do to accommodate the disability? What kind of accommodation is required by human rights legislation? By arbitral jurisprudence? “Best-practice” corporate policies?
    • Counselling: What are some best practices in counselling an employee with behavioural or performance issues? How should employers approach employees who are failing to meet performance standards? What types of non-disciplinary actions are most likely to correct performance problems? What are the employer’s obligations under human rights legislation when communicating its concerns? What is the scope of representation the union may provide at a counselling meeting? When will counselling or monitoring employees be considered harassment? Does the caselaw assist in drawing a line between legitimate management and bullying by a supervisor?
    • Discipline: What are the essential elements of a disciplinary meeting? What are an employee’s rights when summoned to an investigatory or disciplinary meeting? Are union representatives entitled to be present? What are the consequences if they are not? What factors have arbitrators identified when deciding if the penalty imposed by the employer is just and reasonable? Is progressive discipline effective in preventing future employee misconduct?