A significant number of grievances we deal with relate to the discipline and discharge of members.
Nearly every collective agreement states that the employer can discipline or discharge employees for “just cause”. From our point of view, that means an employer shall not discipline an employee without proving “just cause”. This idea of “just cause” is one of the most important gains unions have made. Even though these words “just cause” are often found in the management rights clauses, these words actually limit management rights.
In all other types of grievances, the union has the burden of proof. In cases of discipline or discharge, management must prove that it had “just cause” for its action.
Understanding “just cause” and defending workers
What is just cause? Here is a short definition:
“Sufficient or enough and proper reason for discipline or discharge.”
What arguments can the union use to show that management has no or not enough “just cause” for firing or disciplining a worker?
This defence establishes that the grievor did not do what management says. Proving someone not guilty depends on the facts and what reasonably can be believed to be true in the balance of probabilities. The problem with the “balance of probabilities” is that it is a lesser standard of proof than what is needed in a criminal trial.
The “balance of probabilities” theory says that the most probable of several reasonable explanations based on the facts of what happened can be accepted by an arbitrator. It does not mean the employer has to prove the worker is guilty “beyond a reasonable doubt” as in criminal law. This is another reason why it is so important that workplace representatives, in order to prove innocence, must carry out a thorough investigation of all related facts, witnesses, and documents.
EXTENUATING AND MITIGATING CIRCUMSTANCES
This defence accepts that the grievor did do what management says, but establishes that the grievor can offer a reasonable explanation under the circumstances. Other mitigating factors:
- Previous good record and length of service.
- The offence was an isolated incident.
- The grievor was provoked by some unusual event.
- The offence was committed on the spur of the moment without premeditation.
- Firing would condemn the grievor to a special economic hardship.
Source: Steel Equipment Co. Ltd. (1964) 14th volume, Labour Arbitration Cases, Page 356, Reville (Arbitration)
THE PUNISHMENT MUST FIT THE CRIME
This defence establishes that the penalty is too harsh for the seriousness of the issue.
This defence accepts that the grievor did as management says but establishes that others have also done the same with management’s knowledge and they have not been disciplined as severely or they have not been disciplined at all. Management must apply its rules even-handedly and without discrimination.
UNREASONABLE RULE OR MANAGEMENT DIRECTIVE
This defence accepts that the grievor did break the rule, but establishes that the rule is either unreasonable in itself or has been applied to some and not others (discriminatory) or has not been made known by verbal or written communication. Note: management can take for granted that workers know some things are forbidden without having to be told. For example, drinking, theft, and violence.
What happens when a rule is unreasonable in and of itself? Rules that go against natural justice can be challenged. One workplace had a rule that said any worker charged with an offence while off duty and not on employer property, could be suspended without pay pending the outcome. An arbitrator found this rule unreasonable because it would mean presuming someone guilty before they had been proven guilty.
There has to be a true business reason for the rule. The employer rule should be reasonably related to (a) the orderly, efficient, and safe operation of the employer’s business and (b) the performance the employer might properly expect from a worker.
INVESTIGATION AND PROCEDURE
This defence establishes that the proper procedures were not followed. It might also establish that a proper investigation never took place. Did management, before handing out discipline, make an effort to find out if the grievor did in fact do as accused? Did they give the grievor a chance to explain? Did the worker have union representation as provided for in the collective agreement? Not providing union representation when the employer calls the worker to a disciplinary meeting and when the contract says a worker must have union representation can be important grounds to challenge any discipline that resulted from the meeting.
RIGHTS OF WORKPLACE REPRESENTATIVES
Workplace representatives, as employees, do not have any special privileges. When they are carrying out their duties to represent their co-workers, however, management must recognize that they have a special role in the workplace. Their job is to challenge management decisions.
Management might consider the workplace representative’s role in forcefully challenging management decisions as a kind of “insubordination”. Normally, insubordination is a so-called “industrial offence”. However, when speaking as a committeeperson on behalf of co-workers, a committeeperson may do or say some things which would otherwise be seen as insubordinate. In any event, the workplace representative must still exercise good judgment as they are not immune from discipline.
EXCEPTIONS TO THE OBEY NOW AND GRIEVE LATER RULE
Normally workers have to obey employer rules and file grievances later, if they disagree. Some exceptions are noteworthy:
Right to Refuse: Occupational Health and Safety. See the Right to Refuse section of this guide.
Illegal orders: Management cannot order you to so something which is against the law. When a workplace representative is acting to protect other workers from imminent harm and when, in the circumstances, the grievance procedure cannot provide any effective redress or remedy.
Examples of this situation can arise when a workplace representative is refused leave for union business but insists on leaving the job in order to represent a worker at a disciplinary interview or at a refusal of unsafe work or when the workplace representative’s attendance is needed at a meeting where grievances affecting workers’ seniority rights have to be written by a certain time limit.
Irreparable harm: When the employer makes a demand that once obeyed causes irreparable harm that cannot be undone (for example, invasion of privacy such as a random drug test where there is no collective agreement language, or being required to take a flu shot). This exception should only be used in rare instances.
Members may be disciplined for not following the ‘obey now and grieve later’ principle, even when they are in the right. Their discipline would be dealt with through the grievance procedure.
Discipline generally must be graduated in order to correct “employee misconduct”. Graduated discipline usually means verbal warnings, followed by written warnings, followed by one or more suspensions, followed by discharge. Many arbitrators demand such an approach before allowing a worker to be discharged except in the case of serious offences such as theft, drinking, or violence. We should always object to the employer giving out two forms of discipline for the same offence. This can happen when management decides to give a written warning and later on, decides to give out a suspension for the same thing.
We must always watch that management does not use stale discipline. Usually the collective agreement says there is time limit on how long past discipline can be considered. This might be three months or it might be two years. It depends on the collective agreement.
To prove just cause for discharge, an employer must show progressive, corrective discipline, plus a culminating incident.
The idea of “culminating incident” can work to the advantage of the employer in that it allows management to use a seemingly minor offence as the “last straw”. But first they have to prove the following:
- An offence has been committed which, in and of itself, deserves some discipline.
- The worker understood the consequences of any further offences.
- Discipline was handed out for previous incidents that are referred to.
- Prior discipline which was successfully grieved cannot be used.
- The culminating incident was related in some way to the previous incidents referred to.
- Management informed the worker, at the time, they were considering the offence as a culminating incident. In other words, management cannot “up the ante” from a suspension to a firing halfway through the process. Grievors are entitled to know at the outset the extent of the case against them.
- The prior record of discipline is not stale. There is usually a negotiated time limit on how long past misconduct can be used against a worker.
NOTE: Workplace representatives ought to inform a member who is being disciplined often what the possible consequences could be. The Union Counselling program or Employee Assistance Program if one has been negotiated, may help, for example. It is better to name and deal with a problem before it gets as far as discharge.
When it comes to discipline & discharge, tell the worker’s story
When you are defending a worker who has been disciplined or discharged, your job is first and foremost to conduct a full investigation – you want to build as complete a file as possible. Then working with your Chairperson or Chief Steward, you will work to position the argument. Developing a ‘theory of the case’ means you determine how you might best win (and make sure you have your evidence in order). You will want to think critically about management’s ‘theory of the case’ too – and be prepared to counter their evidence (and make sure you know what they’ve got). Part of your case also includes telling a full story – let the employer / arbitrator know who the grievor is – if they are a single mom, say so; if they are a 22-year employee with 2 kids ages 8 and 4, say so. You don’t want the employer/arbitrator to see the individual as ‘just another worker’ or ‘just another discipline case’. It will also help you to get to know the worker, so that you don’t fall into the trap of seeing them as ‘just another problem to solve’.
When it comes to discipline & discharge, get advice
Talk to other workplace representatives or local officers to share information and obtain their perspectives and advice. Contact your National Staff Representative for any indication of a trend, and what other locals are doing about similar problems. Network with union representatives from other areas who are facing similar situations.
Understanding last chance agreements
A last chance agreement is an agreement signed between the union and the employer (and sometimes the worker), giving a worker who has been accused of engaging in some kind of serious misconduct, one last chance to keep her/his job. Sometimes these are also called ‘never, never agreements’.
The employer typically agrees to withdraw discipline on the condition that if there is any further violation of the terms specified, then the worker can be terminated without recourse – or with limited recourse – to the grievance/arbitration procedure.
Effectively this means that if the worker does not live up to the terms in the last chance agreement, the employer can fire them without having to prove ‘just cause’, and the union is limited in our ability to challenge the termination.
Employers will often push for a ‘last chance agreement’ because it paves the way for a termination. Unions should enter into “last chance” agreements only in those truly desperate circumstances where there is no other possibility of saving a worker’s job. If the grievor has a defense, or if there is a reasonable chance that the arbitrator will lessen the penalty to a suspension, then “last chance” agreements should be avoided.
Before entering into a “last chance” agreement it might be helpful to keep in mind that the employer will always have another chance to fire a worker, but the worker will never have another chance to keep that job.
Arbitrators are likely to enforce the terms of the last chance agreement, unless there is a clear human rights violation. For example, in the case of a worker with a disability who is chronically absent, an arbitrator may look beyond the last chance agreement to determine whether the employer has met their duty to
“Generally speaking, arbitrators will enforce such agreements in accordance with their terms, except where the agreements are contrary to legislation, as may be the case where the circumstances in question are governed by human rights legislation.” (Brown & Beatty)
Last chance agreement checklist
- Is a last chance agreement appropriate / necessary in this case?
- Has the grievor disclosed all information relevant to meeting the requirements of the last chance agreement?
- Is the last chance agreement in accordance with human rights legislation?
- Are there underlying mental health or addiction issues which have not been addressed?
- Are previous absences/behaviours due to a disability?
- If this is an appropriate case, are the terms of the last chance agreement reasonable?
- Are the requirements too strict?
- Is there a specific penalty of discharge for any breach of work rules?
- Does the last chance agreement have an expiry date?
- What if a new disability develops or is diagnosed?
- Should there be reinstatement followed by a period of treatment before the worker must return to work?
- Does the grievor clearly understand that a breach of the last chance agreement will result in the automatic termination without substantive recourse to the grievance procedure?
Note: an arbitrator will be able to determine if the agreement is legal and if the agreement has been breached. If these two facts are determined, and there is a specific penalty of discharge, the arbitrator cannot vary the penalty.
Dismissal of employees with addiction issues
Drug and alcohol dependencies are considered disabilities under the law. More and more of our members struggle with substance addiction, and substance addiction has become a major social and health problem in our society.
To defend a worker with an addiction problem who gets fired, we need to know:
- Under what conditions might an arbitrator decide that an employer was justified in dismissing the employee (in spite of the substance addiction issue)?
- What kind of evidence will help reinstate a worker who has been dismissed due to substance abuse / addiction?
Two Ontario arbitration decisions provide guidance in answering these questions. In ATU, Local 113 v TTC 114 CLAS 357 (2012), a TTC janitor who had long struggled with addiction was dismissed for showing up to work intoxicated. The collective agreement provided for the specific penalty (termination) for performing work while intoxicated. From the arbitrator’s point of view, the employer had a legitimate reason to terminate the employee. The arbitrator upheld the termination (i.e., the worker did not get their job back).
In that case, the arbitrator was concerned with the question: “is there a legitimate labour relations reason for the dismissal?” This is a labour relations analysis. A labour relations analysis only examines the alleged misconduct and whether it gave the employer reason to terminate the employee – the questions about substance addiction do not enter into this question – regardless of how unfair that may seem.
But let’s look at ONA v London Health Services Centre  OLAA 24. In this case, a nurse with only a short service record was stealing drugs from the hospital and falsifying patient charts.
In this case, a second question came into play: “is the dismissal discriminatory, and did the employer meet the duty to accommodate?” This is a human rights analysis. The human rights analysis takes into account the addiction issues and asks whether the employer discriminated against the employee on the basis of their disability. The main question here is usually:
did the employer accommodate the employee to the point of undue hardship? In this case, the worker’s termination was not upheld – the arbitrator determined that the employer had not met its duty to accommodate the nurse to the point of undue hardship. In making their decision, the arbitrator considered whether the addiction was the cause of the misconduct for which she was fired. The nurse had stolen drugs for personal use only – this was significant to the arbitrator in the causal analysis.
In the result, the arbitrator referred this matter back to the parties to determine whether the nurse in question could be reasonably accommodated. In referring it back, the arbitrator provided guidance as to the evidence that should be considered to determine whether an employee is entitled to accommodation and to what extent:
a) Is there actual evidence of an addiction?
- A medical or psychological report can establish this – we should not rely on “common sense” or non-specialist assessment.
b) Is the addiction the direct cause of the misconduct?
- As above, it appears the connection should be fairly direct.
c) Has the employee sought treatment?
- “Accepting and Pursuing Necessary Treatment” is considered a prerequisite for accommodation and an important factor in favour of the employee
d) Has the employee apologised?
- An unsolicited and genuine apology, at the first reasonable opportunity is a strong factor in favour of the employee.
e) Is the employee capable of performing duties of the job (reasonably modified or not)?
- A “capacity assessment” – either medical, psychological or through the relevant professional regulatory body – can provide powerful support to the employee’s argument for returning to work.
When we are grieving discipline/discharge in cases where there is the possibility of a substance addiction issue (i.e., a disability), we need to insist that the arbitrator not only apply a labour relations analysis when viewing the case, but also a human rights analysis. For more information on the Duty to Accommodate, refer to the section in this Guide.