Leading Cases on Discharge and Discipline: Mastering the key principles, foundational cases, and current issues

This essential session will explore the seminal cases and fundamental principles that shape the disciplinary process in unionized workplaces, and discuss how they are being applied by arbitrators today. Join a seasoned arbitrator and labour lawyers to gain a better understanding of the key issues involved, including progressive discipline, the right to union representation, and aggravating and mitigating factors.

• The just cause standard: When will employee action meet the “just cause” standard for discipline? Are there different approaches to just cause in different jurisdictions? Is a progressive discipline approach implicit in the just cause standard? Are zero-tolerance policies consistent with the just cause standard?
• Culminating incident and prior record: What constitutes a “culminating incident,” and when is an employer entitled to rely on an employee’s adverse disciplinary record? When, if ever, can an employer rely on evidence relating to prior non-disciplinary incidents? Are employers ever entitled to adduce evidence of prior discipline, in the presence of a sunset clause?
• Right to remain silent: What practical consequences may follow from an employee’s failure to provide an explanation for apparent misconduct?
• Union representation: What triggers the right to union representation? Is there an implied obligation on the employer to advise the employee of the right to union representation when calling a disciplinary meeting? Where the right is violated, is discipline automatically void?
• Assessing discipline: What factors are generally seen as aggravating factors, and what factors are generally seen as mitigating factors? Which factors carry the most weight in assessing discipline?
• Effect of disability: What approach do arbitrators take when a union asserts that an employee’s misconduct can be explained as a consequence of his or her disability? Has the Supreme Court’s decision in Elk Valley altered the manner of assessing whether workplace misconduct is connected to a disability?
• Compensation in lieu of reinstatement: In what circumstances will arbitrators decline to reinstate an employee despite finding that discharge was not warranted?