When disputes arise in a unionized workplace, they are normally resolved through the grievance process, which is set out in the collective agreement. Typically, a collective agreement will contain information as to the grievance and arbitration process. This process will set out the procedure that is to be followed allowing for a timely and thorough investigation of any disputes that arise from an alleged violation of the collective agreement.
It is important, for the employer, union, and employees that all procedural obligations are met when the employer is investigating and disciplining employees. The reason and explanation for the discipline should always be given to the employee. An employer may be prohibited from relying on reasons for discipline that were not conveyed to the employee.
Further, an employee must be provided with sufficient information, which will allow the employee to respond to the allegations against them, and a union representative must be present when discipline is being imposed. All decisions made by both the employer and union must comply with the provisions in the collective agreement.
During the grievance process, an employer will bear the onus of demonstrating that they had just cause for disciplining or discharging the employee. However, the onus that is placed on the union is to show why there was no misconduct or that the discharge or discipline was too severe for the misconduct that occurred.
Unionized employees can only be terminated for just cause in accordance with the provisions that are set out in the collective agreement. Just cause may be found in multi-incident misconduct, or in severe single incident misconduct, such as assault or sexual harassment.
Occasionally, the grievance will enter into the arbitration phase, where an arbitrator will consider the factual circumstances, nature, degree and other factors relating to the misconduct, including aggravating and mitigating factors and the prevailing arbitral case law. Mitigating factors are any action taken that may have led to a lesser or more lenient penalty. Examples include lack of previous discipline or progressive discipline methods, impulsiveness, provocation, or remorse following the misconduct.
Aggravating factors, on the other hand, are any actions that may have led to a harsher or more substantial penalty. Examples can include dishonesty during the investigation, premeditation, and repeated conduct over a period, ignoring progressive discipline warnings and failure to show remorse for one’s actions.
Taking in all considerations, the arbitrator will determine whether the discipline was appropriate with regard to the misconduct in question. An arbitrator may find the discipline or termination too drastic for the misconduct in question and rather find that a progressive discipline method would be more appropriate.
Where an employer cannot show just cause for the discipline or termination, it will never be found to be appropriate in the circumstances. The discipline should align with the employer’s goals of deterrence and motivate employees to adhere to workplace standards.
How can Zeilikman Law help?
The lawyers at Zeilikman Law can advise about proper discipline and discharge in the unionized context. Our experienced labour lawyers can provide advice and guidance on conducting proper investigations, meeting procedural obligations, the appropriateness of the discipline or discharge, and spot areas of issue/weaknesses that may or have arisen throughout the process.
At Zeilikman Law, we take pride in our litigation and advocacy skills and we will ensure to represent your interests confidently and assertively with realistic expectations in mind. If discharge or discipline is inevitable, we will represent you through the grievance process up to and including arbitration and beyond, if necessary.