December 19, 2012

In unionized workplaces “just cause” provisions in collective agreements require discipline and discharge to meet procedural and substantive norms; thus, for example, discipline must be proportional to the misconduct and, save in serious cases, must be applied progressively. In this audio session, a panel of experienced counsel will provide a roadmap to the disciplinary process in unionized workplaces, explaining what procedures should be followed and what principles must be considered and applied.

    • Does an employee action justify discipline? When will employee action meet the “just cause” standard for discipline? What restrictions, if any, apply to the discipline and discharge of probationary employees? Can a non-probationary unionized employee ever be discharged for reasons that do not meet the “just cause” standard? Will an employee’s failure to follow the “work now, grieve later” rule always provide just cause for discipline, even if the employer’s direction is later found to violate the collective agreement or employment-related legislation?
    • What procedures does the collective agreement require? Must employers always conduct pre-disciplinary investigations? What must an employer do (and refrain from doing) during such an investigation to ensure fairness? Do employees have a right to union representation even in the absence of a collective agreement provision mandating representation? If the employee has a right to union representation, at what stages in the discipline process are union representatives entitled to be present (e.g. initial questioning, investigation, disciplinary meeting)? What is the union representative’s role in a disciplinary meeting? What are the consequences of not allowing an employee to have appropriate union representation?
    • What does labour arbitration law and employment-related legislation require? When will arbitrators find that an employer waited too long to impose discipline, rendering the discipline inappropriate? What constitutes double discipline? Why is it important for employers to ensure that employees who engaged in the same misconduct receive the same disciplinary treatment? What role does the duty to accommodate play in the disciplinary process if an employee’s misconduct is attributable, in whole or in part, to his or her disability?
    • Is the discipline excessive or disproportionate? What factors are relevant in assessing appropriate discipline and how much weight should be given to each factor? What are mitigating factors? What are aggravating factors? How significant are candour and remorse in the assessment of penalty? Why is the concept of progressive discipline relevant to determining what discipline is appropriate and what discipline would be excessive or disproportionate?
    • What happens when an employer imposes excessive or disproportionate discipline? What remedies is an arbitrator likely to grant at arbitration? Will employees subjected to improper discipline or discharge be awarded damages for mental distress? When, if ever, will an arbitrator award wrongfully dismissed employees damages for defamation, loss of reputation or punitive damages? When will arbitrators order damages in lieu of reinstating an employee? How are such damages calculated?