October 22, 2015

In this audio session, a panel of experienced counsel will explain what principles must be considered and applied in addressing concerns regarding employee conduct that impacts the workplace. The following topics will be discussed:

  • Assessing cause for discipline: When will employee action meet the “just cause” standard for discipline? When will it not? When is reinstatement appropriate? When is it not? When will an employee’s failure to follow the “work now, grieve later” rule provide just cause for discipline? When will it not?
  • Determining an appropriate penalty: How is proportionality in penalty ensured? Why is the concept of progressive discipline relevant to determining what discipline is appropriate and what discipline would be excessive or disproportionate? What details of an employee’s past disciplinary record can be taken into account in imposing discipline? What is the impact of disciplinary “sunset” provisions? Are there any types of misconduct that will always warrant discharge (e.g. theft, criminal activity, violence)? What factors will mitigate the penalty? What factors will exacerbate it?
  • Considering the duty to accommodate: What steps should an employer take if it suspects that an employee’s disability has contributed to misconduct? Is an employer required to investigate whether disability played a role in an employee’s misconduct prior to imposing discipline? What happens if the employee denies that the misconduct is disability-related? Should the “hybrid approach”, which distinguishes between culpable and non-culpable factors, be applied when determining whether discipline is appropriate? When will the employer reach the point of undue hardship in accommodating an employee with a disability that results in misconduct?