One Strike and You’re Out? When is misconduct a firing offence, when is progressive discipline appropriate?

Although arbitrators will generally require a progressive disciplinary approach in response to workplace-related misconduct, such an approach may not be appropriate when it comes to some of the most serious forms of misconduct. What contextual factors will come into play when considering whether summary discharge is warranted in response to a given incident? Are there any types of misconduct which will justify a “zero tolerance” approach? In this session, Lancaster’s experts will discuss these and other questions relating to discharge and discipline.

• Progressive discipline: What are the fundamentals of progressive discipline? What steps should an employer follow in trying to correct an employee’s behaviour? What can employers do with regard to a worker who won’t follow the rules? When is it apparent that an employee has been given a chance to reform his or her behaviour and will not comply?
• When is misconduct a firing offence? What kinds of offences are so egregious that summary discharge is justified?
  • Dishonesty: What type of conduct will “irreparably damage” the relationship of trust between the employer and employee such that automatic discharge is warranted? Is it necessary for an employee to have benefited economically from his or her dishonesty to justify discharge? Should discipline be proportional to the particular form of dishonesty involved? In what circumstances will the dishonest recording of attendance, sick leave abuse or time-theft warrant discharge?
  • Theft: Is discharge the presumptive response in cases of workplace theft? Does it matter whether the theft occurred in an unsupervised setting? Does the value of stolen goods affect the decision about whether or not to discharge the employee? How much difference does the employment context make – e.g. is theft in the retail sector properly a matter for zero-tolerance?
  • Threats, violence and harassment: When is progressive discipline the appropriate approach towards threats, violence, and harassment? When will summary discharge be upheld for violence and harassment? Has the response to harassment changed after the implementation of anti-bullying statutes such as Bill 168 in Ontario and Bill 14 in B.C.?
  • Health and safety misconduct: When will corrective discipline be appropriate when dealing with health and safety violations? When is health and safety-related misconduct a firing offence? Are different approaches appropriate for different kinds of workplaces?
  • Alcohol or drug use: What kind of approach to drug and alcohol use in the workplace is most appropriate?
• Factors determining penalty: What are the key distinguishing features between serious offences that are determined to merit discharge and those that do not? To what degree do the following considerations mitigate the misconduct and support a lesser penalty: Seniority? A dire financial situation? The lack of a prior disciplinary record? Admission of guilt? Acceptance of responsibility? Candour? Remorse? Provocation? Is a lack of candour by an employee in the investigation or arbitration process a factor which should be considered when imposing discipline?
• Dismissal and disability: If an employee’s serious misconduct is caused by a disability, how should the employer respond? Should the employer use a “hybrid approach,” distinguishing between culpable and non-culpable factors? When will termination of a disabled employee be warranted? How should employers approach discipline for serious misconduct so as to comply with human rights legislation prohibiting discrimination based on disability?