Transcript Discipline and Discharge

Discipline and Discharge
• Just Cause
– Synonyms
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“Cause”
“Proper Cause”
“Good Cause”
Implied unless evidence indicates parties did not want
it in the agreement
– Contractual
• In the absence of a contract, employment is “at will”
Reasons Constituting Just Cause
• Employee Ability and Performance
• Employee Conduct
• Business Necessity
Employee Ability and Performance
• Employer must supply necessary conditions to
do the work
– Tools
– Training
– Time
– Safe Workplace
– Raw Materials
• Employee has responsibilities
• No-Fault Discipline
– Employee unable to work due to medical reasons
Employee Conduct
• Fairness
– Employee must know conduct is unacceptable
• Employer must
– Announce rules
» Reasonable – related to operation of business
– Announce Penalties
• Egregious or violates societal norms
– Theft
– Fighting
– Insubordination
• Obey First, Grieve later, with exceptions
• Off-duty conduct with a relationship to job
Elements of Just Cause
• Three Basic Questions
– Did the grievant engage in the misconduct of
which he/she was accused?
– If so, was the grievant provided with due process?
– If so, did the Employer take into account any
mitigating circumtances?
Did the grievant engage in the misconduct
of which he/she was accused?
• Burden of proof on the employer
• Has the employer shown, by whatever
evidentiary standard the arbitrator chooses to
employ, that the grievant “did it.”
– Preponderance of the evidence (51%)
– Clear and convincing evidence (app. 65%)
– Beyond a reasonable doubt (75%-80%)
Did the grievant engage in the misconduct
of which he/she was accused (cont.)?
• Objective evidence
– Employee records
• Attendance
– Drug Test results
• Purity of sample
• Chain of custody
• Reliability of testing organization
– Production Records
Did the grievant engage in the misconduct
of which he/she was accused (cont.)?
• Non-Objective Evidence
– Eyewitnesses
• What did they see?
• Are they biased?
• Were they involved?
– Observance of the Scene
• May be clear what happened, but not why it happened
– Damaged equipment
– Employee altercation
• Time between event and observance
• Other possible explanations
– Consistency of grievant’s explanation with
evidence
Was the Grievant Afforded Due
Process?
• Elements of Due Process
– Reasonableness of Rule/Related to Business
– Awareness of consequences of actions
• Awareness of Rules
• Awareness of Potential Penalties
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Full, Fair, and Unbiased Management Investigation
Reasonably specific charges with a link to rules
Timeliness in relation to offense
Union Representation if Requested
Consistent Enforcement of Rules
• By Management
• Among Employees – Disparate Treatment
– Employee Privacy – reasonable cause
• Progressive Discipline for Most Offenses
Mitigating Circumstances
• Employee Length of Service
• Employee Work Record Including Discipline
– Subject to Any Contractual Provisions
• Management/Supervisor Error or Fault
• Employee Illness or Medical Condition
– Employee attempts to address problem
• Employee Apology or Contrition (likelihood of
incident being repeated)
Issues in Discharge Cases
• Off-Duty Misconduct
– Must be link to the job
• Sexual or Racial Harassment
– Use of EEOC guidelines if no contractual definition
• Repeated actions
• “Last Chance” Agreement
• “Obey First, Grieve Later”
– General Obligation on Employee
– Exceptions
• Health and safety concerns
• Nonrecurring event
Broad Authority of Arbitrator
• Unless collective agreement limits authority of arbitrator, may
– Deny Grievance in Full
– Sustain/Grant Grievance in Part and Deny in Part
• Reinstate without back pay
– Evidence established grievant engaged in misconduct but there was a due
process violation and/or mitigating circumstances
– May be conditions on reinstatement
» Example: Negative Drug/Alcohol Test and continue to be drug/alcohol
free on job
• Reinstate with partial back pay/reduction of penalty
– Evidence established grievant engaged in misconduct but discharge not
warranted
» Mitigating circumstances
» Disparate Treatment with respect to the penalty
• Sustain/Grant Grievance in Full
– Evidence did not establish grievant engaged in misconduct
– Anything Else That is Appropriate to the Case