Tipping the Scale: What factors will arbitrators take into account when assessing discipline?

Canadian arbitrators have the jurisdiction to review discipline imposed on unionized employees and to substitute lesser penalties where it is just and reasonable to do so. In exercising this jurisdiction, arbitrators will take into account well-accepted aggravating and mitigating factors to determine an appropriate response to misconduct. In this session, a respected arbitrator and experienced labour lawyers will provide insight into which factors tend to carry the greatest weight at arbitration.

• Just cause: When will employee action meet the “just cause” standard for discipline? Are zero-tolerance policies consistent with the just cause standard? How does the assessment of whether off-duty conduct meets the just cause standard differ from the assessment of on-duty conduct? Is an employer required to investigate whether disability played a role in an employee’s misconduct prior to imposing discipline? How is undue hardship assessed when accommodating an employee who engages in misconduct because of a disability?
• Aggravating factors: What factors are generally seen as aggravating factors? How significant are the following factors in assessing discipline: dishonesty, seriousness of misconduct, repetition of misconduct, lack of remorse?
• Mitigating factors: What factors are generally seen as mitigating factors? Which factors carry the most weight 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?