The Legal Test for Discipline and Dismissal: Is it Just and Reasonable?

The Steward
Volume 1, Edition1

The William Scott decision (Wm. Scott &Co. (Re), [1976].) sets out the general principles upon which all arbitrators must weigh and consider when it comes to discipline and discharge. Being familiar with these principles will help you in better representing members and being a more effective shop steward in your workplace. The William Scott decision established three questions to determine whether discipline is excessive

  1. Has the employee given just and reasonable cause for some form of discipline?
  2. Was the employer’s decision to dismiss the employee an excessive response considering all circumstances and mitigating factors?
  3. If the discipline was excessive, what alternative measure should be substituted as just and equitable?

The first question is about facts – did the member actually do what the employer says they did? As a shop steward you have the right and responsibility to investigate the basic facts of a discharge or discipline to establish the who, what, when, where and why.  The second question examines whether a member’s misconduct was serious enough to justify the discipline provided. In EVERY case involving discipline there are mitigating factors to consider. The ten basic factors set out in William Scott are:

  1. The previous good record of the grievor
  2. The long service of the grievor
  3. Whether or not the offence was an isolated incident
  4. 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
  5. Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances
  6. Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination
  7. The likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it
  8. The seriousness of the offense
  9. Any other circumstances or mitigating factors

This checklist is not exhaustive. In almost every situation there are mitigating factors which most discipline and discharge decisions can be challenged including:

  • Was the employee given advance warning of the possible and probable disciplinary consequences of continued misconduct?
  • Did the employer make earlier efforts to educate or rehabilitate the employee causing the problem?
  • Was the specific discipline based on progressive discipline approach?
  • Before administering discipline, did the employer make an effort to discover whether the employee did, in fact, violate a rule or order of management?
  • Was the employer’s investigation conducted fairly and objectively or was it fully completed before disciplinary action was taken?
  • Was the employee given an opportunity to give his/her side of the case?
  • Did the investigation produce substantial evidence or proof that the employee committed the offense?
  • Had the employer applied its rules, orders, and penalties consistently without discrimination?
  • Have there been other discipline problems in the past, and over how long of a period?
  • Is this the current problem part of an emerging or continuing pattern or discipline infractions?
  • Was the employee provoked in whole or in part to commit the misbehavior?
  • Are there extenuating circumstances related to the problem such as employee’s economic hardship, domestic or emotional problems?
  • Did the employee commit the offence on the spur of the moment as a result of a momentary aberration due to strong personal impulses, or was the offence premeditated?
  • Was the degree of discipline administered in the particular case reasonable related to the seriousness of the offense and the employee’s work record?

Have a topic or question you would like to see in the next issue? Send an email to Jason Mann jmann@ufcw1518.com

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