September 27, 2012

Arbitral jurisprudence has enunciated several well-accepted aggravating and mitigating factors that should be considered in determining the appropriate response to employee misconduct. In this audio conference, Lancaster’s panel of experienced counsel will list and explain these factors and discuss the weight arbitrators will attach to each in considering what disciplinary response is appropriate in a given situation.

  • Just Cause and the List of Factors Generally: How should employers respond to misconduct? Are zero-tolerance policies appropriate? Or, must employers always follow a corrective approach by using progressive discipline? How should employers deal with employees who engage in misconduct because of a disability? In what circumstances, if any, will an employee’s off-duty conduct justify a disciplinary response? Where do the lists of aggravating and mitigating factors come from? Does the list of factors considered in determining appropriate discipline change depending on the type of misconduct at issue. For example, are different factors considered in cases of theft or violence?
  • Aggravating Factors: What factors are generally seen as aggravating factors? How significant are the following factors in assessing discipline: dishonesty, seriousness of the misconduct, repetition of misconduct, lack of remorse?
  • Mitigating Factors: What factors are generally seen as mitigating factors? Which factors carry the most weight/go the farthest in mitigating discipline for misconduct? How significant are the following: remorse, candour, lack of a disciplinary record, less severe treatment of similar misconduct by others, lengthy seniority, lack of progressive discipline, adverse personal circumstances?