June 7, 2022

An employer’s management rights entitle it to make rules, set standards, supervise employees, issue performance appraisals, and conduct workplace investigations into possible misconduct, except insofar as the scope of these actions is limited by the collective agreement. At the same time, employees in unionized workplaces are protected by an overarching right not to be disciplined or discharged without just cause. This right is often supported by procedural protections, such as union representation at disciplinary hearings. This session will provide workplace parties with the practical tools needed to differentiate actions that are “administrative,” or non-disciplinary, from those that are disciplinary, and to determine what practices and procedures flow from these characterizations. In particular, experts will provide guidance on a number of concerns:

  • Performance management/improvement vs. discipline: When and to what extent can management take action to improve worker performance without this amounting to a formal warning or other disciplinary act? Are performance reviews, coaching or training sessions, counselling, or other forms of performance management subject to challenge on the ground that they are disciplinary in nature?
  • Incompetence and non-culpable discharge: What criteria must be met in order for an employer to validly dismiss an employee for non-culpable performance deficiencies, or for incapacity?
  • Retaliation and harassment: When might management actions be subject to a charge that they are not legitimate and bona fide but constitute retaliation or harassment? Is an employee required to prove that the employer acted with retaliatory intent, or can intent be inferred? What are some common “red flags” that could suggest that managerial action was retaliatory?
  • Workplace investigations, meetings, and the right to union representation: In what circumstances is the employee’s right to union representation triggered? How have arbitrators distinguished meetings or discussions which are “merely investigatory” or otherwise non-disciplinary from those which are disciplinary and therefore attract procedural protections? Do the same standards apply for probationary employees as for regular employees?
  • Disguised discipline: Does it amount to discipline for an employer to impose conditions on an employee’s return to work (for example, monitoring a substance-use disorder), to require an independent medical examination, to place an employee in an attendance management program, or to deny a transfer, promotion, or leave of absence? What criteria have arbitrators applied in making this determination?