Responding to employee misconduct has become more challenging in recent years as human rights law and other legal developments have altered traditional approaches. In addition, employer discipline policies, including those with zero tolerance or specific penalty clauses, have come under scrutiny for inflexibility, inconsistent application and failure to comply with the principles of just cause. In this session, expert practitioners will discuss the key issues which have attracted arbitral attention, including:
What degree of proof is required in the case of serious allegations that could affect an employee's reputation? Where issues of credibility arise, how can they be resolved? Are employees entitled to remain silent in the face of questions from the employer? Is a union representative entitled to be present and participate at an investigative or disciplinary meeting?
What factors are relevant in assessing discipline and how much weight should be given to each factor? (e.g. nature of offence, culpability, length of service, disciplinary record, correction, deterrence, provocation, aberration, acknowledgment, remorse, consistency of treatment, candour, post-discharge evidence, etc.)
When addressing the seriousness of the offence, are there any types of misconduct that will always warrant discharge?
How does the duty to accommodate affect decisions to discipline?
What kinds of disciplinary penalties are out of bounds, and why? When is demotion appropriate, and when is it not?
What are the key features of a valid progressive discipline policy? Is progressive discipline always required? What are the consequences of a failure to apply progressive discipline?
How do arbitrators treat "zero tolerance" policies? When is such a policy likely to be upheld/rejected? Is it appropriate for health and safety violations? Sexual harassment? Alcohol or drug use? Are different approaches warranted in different industries? Is "zero tolerance" consistent with the requirement for "just cause" and accommodation?
How do arbitrators deal with the admissibility of post-discharge evidence (e.g. of rehabilitation) at arbitration? The effect of criminal convictions or acquittals? What details of an employee's past disciplinary record can be taken into account in imposing discipline? What is the impact of disciplinary "sunset" provisions?
What is meant by the "work now, grieve later" rule, and what exceptions have been recognized by arbitrators?
Are automatic termination clauses and "last chance" agreements enforceable? How should they be framed so as to comply with human rights legislation prohibiting discrimination based on disability?
How should an attendance management policy be framed so that it does not violate just cause requirements, discrimination provisions, and accommodation obligations?
ACCREDITATIONS:
Approved by the Law Society of B.C. for 1.5 hours of 2009 Continuing Professional Development credits.
This program has been accredited by the Law Society of Upper Canada for 1.5 hours towards the professional development requirement for certification.
Q
& A:
Gather
your colleagues around a speakerphone in your own office or boardroom. Have the
opportunity to ask questions in the Question & Answer portions of the sessions.
An additional 15 minutes will be added at the end of the session for those who
wish to continue with Q & A.
MATERIALS:
Valuable,
up-to-date materials and case summaries will be available for downloading from
our website.
REGISTRATION
FEE:
$195,
plus GST (Registrations must be paid in advance of the audio conference).
Registration costs are per listening site/telephone, so you can have any number
of people listening at your location for one low price. Click here for registration information.
CDs:
Audio conference CDs, including a PDF copy of the materials from the conference, are available for $175 + GST per conference ($75 + GST for registrants). Click here to order.
REGISTRATION
INFORMATION:
When you register,
you'll be given a toll-free number to dial at the time of the
session and an access code to join the call. For additional program and registration information,
call Lancaster House at 416-977-6618 or register now.
Click here for registration information, or call
Lancaster House at 416-977-6618
