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?