Volume 1 Edition 2
As a steward, if a member is questioned by management as part of a disciplinary investigation, you should tell the member that honesty is the best policy. Guessing at answers or stretching the truth during a disciplinary investigation may have consequences.
- Falsehoods made during the investigatory stage could call into question the member’s credibility should the matter go to arbitration.
- Such falsehoods are often uncovered and a member’s version of events could be rejected if it is not in “harmony” with objective evidence. Faryna v Chorny,  BCJ No 152 (CA)
- Some, but not all, arbitrators may find that falsehoods made during a disciplinary investigation could potentially lead to further discipline or termination, even on an investigation of a minor allegation.
- Arbitrators have ruled that a “deliberate attempt to deceive the employer by a false or misleading explanation” is a basis for further discipline. FortisBC Energy Inc. v International Brotherhood of Electrical Workers, Local 213, .
- Arbitrators consider the grievor’s candour, whether they made a timely admission of wrongdoing, whether they made a timely acknowledgement of responsibility or apology and whether the member expressed remorse when evaluating discipline and termination.
Because of the potential bad consequences for the member, you may want to suggest to the member that they do not guess at any answers, since guessing wrong could later be viewed as trying to mislead the employer.
The Right to Silence
In almost all circumstances, a member has the right to remain silent that they may wish to exercise. However, there can be adverse consequences for a member who does not take the opportunity to provide an innocent explanation of events. While remaining silent, particularly where the member also faces criminal charges, is not an independent cause for discipline, not taking the opportunity to explain innocent behavior, may compel the employer to make decisions without the benefit of the member’s response or explanation. Tober Enterprises Ltd. v UFCW, Local 1518  BCLRBD No 51. Arbitrators have held that a member who did not provide an innocent explanation at an investigation meeting can be denied back wages if they are eventually reinstated.
Preparing for Disciplinary Meetings
In preparation for an investigation disciplinary meeting, UFCW Local 1518 stewards should tell members that honesty is the best policy. If a member is to be questioned by management in the investigation of an incident, which may result in disciplinary action being taken, they should have their steward present before such questioning begins. In general, the steward should follow these guidelines during a meeting:
- Get as much information before the meeting begins. Do not let management withhold information. Document any denials of information.
- Speak to the member prior to the meeting, if possible. If questioning has started prior to your arrival, ask for a break to find out what happened.
- When the steward arrives, management should inform the steward of the subject matter of the interview, that is, the type of conduct for which discipline is being considered.
- Take notes. Many cases have been won on the basis of good note taking during a meeting.
- The steward must be allowed to speak during the interview. However, the steward does not have the right to determine the reason or purpose of the meeting.
- Your right to clarify information should not be restricted by management. If you are denied that right, make sure that the denial is entered on your notes.
- At most meetings the steward can stop the meeting at any time to speak privately with the member. A member can end a meeting at any time or demand a break.
- There is no obligation that a member answer the employer’s question in person. A member may state that they wish to respond in writing and that they be given time to answer.
- If the meeting is being recorded, ask the member whether they agree to the meeting being recorded as recording requires the consent of the member and your consent.
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