Employee Discipline & Dismissal
Discipline and dismissal are typically the matters most often challenged through the grievance and arbitration process. Even employers that don’t have unions can land themselves in legal challenges when an employee decides to sue the employer for discipline/termination of an employee as a breach of the contract of employment.
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There are several factors to consider when disciplining and particularly dismissing an employee. There is ample case law, but the principles that were first determined in Wm. Scott & Company Ltd. and Canadian Food and Allied Workers Union, Local P-162 are the standard that arbitrators weigh discipline and dismissal disputes against.
Dismissal grievances and arbitrations in particular can be costly, Wiggs Labour Relations can assist you in your decisions to discipline or dismiss employees and mitigate, to the extent possible, the risks associated with the grievance and arbitration process.
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The previous good record of the grievor.
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The long service of the grievor.
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Whether or not the offence was an isolated incident in the employment history of the grievor.
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Provocation.
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Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional Impulses, or whether the offence was premeditated.
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Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances.
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Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination.
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Circumstances negativing intent, e.g. likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it.
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The seriousness of the offence in terms of company policy and company obligations.
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Any other circumstances which the board should properly take into consideration, e.g.,
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failure of the grievor to apologize and settle the matter after being given an opportunity to do so;
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where a grievor was discharged for improper driving of company equipment and the company, for the first time, issued rules governing the conduct of drivers after the discharge, this was held to be a mitigating circumstance;
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failure of the company to permit the grievor to explain or deny the alleged offence.