Discharge and Discipline:
Investigating misconduct, determining just cause, assessing penalties
Pre-Conference Workshop
Calgary

Presented by Lancaster House, The University of Calgary's Industrial Relations Research Group, and The University of Saskatchewan

►covering employment in both federal and provincial jurisdictions◄

Wednesday, May 30, 2012
Full-Day Interactive Session
9:00 a.m. – 4:00 p.m.

The Metropolitan Conference Centre 
333 Fourth Avenue S.W.

To minimize the negative impact on employer-employee relationships and productivity, a workplace disciplinary system should be, and should be seen to be, fair, impartial and effective. In this workshop Lancaster’s experts will provide guidance on establishing and maintaining a fair and effective discipline process. They will highlight the proper steps to take during a disciplinary investigation and address the relevant factors to be considered in determining appropriate discipline as well as the following:

• The Disciplinary Investigation: What steps should an employer take in order to conduct a fair investigation? What protections should be put in place for witnesses? Does the union or employee have a right to investigatory reports? Is an employee entitled to remain silent in the face of questioning from the employer? What inferences, if any, can be drawn from the employee’s silence?

• Union Representation: Is an employee only entitled to have union representation at disciplinary meetings or can an employee request union representation at investigatory or performance management meetings? Does the employee have the right to the representative of his or her choice? What role can the union representative play in the meeting? What is the consequence of disciplining an employee without having a union representative present at the meeting?

• Misconduct Connected to Employee Disability: Does the employer have a duty to inquire as to whether an employee’s misconduct or poor performance is the result of a disability? Even if the employee hasn't explicitly linked the misconduct to a disability, should the employer consider whether the employee's behaviour or actions indicate that a disability might be at play? What is required to establish a nexus between the problematic behaviour or inadequate performance and the disability? How should the "hybrid" approach be applied in cases of misconduct influenced by disability? Should some sort of monitoring be put in place as part of an accommodation plan?

• ‘Just Cause’ for Discipline or Dismissal: What types of conduct meet the "just cause" standard? Is a "zero tolerance" policy consistent with the requirement for "just cause?" Is a criminal conviction just cause for dismissal? When, if ever, will the employer have just cause to discipline an employee for off-duty misconduct?

• The Impact of a Progressive Discipline Policy: What are the essential features of a progressive discipline policy? What is a "culminating incident" under a progressive discipline policy? Is an employer bound to follow a progressive discipline policy? What are the consequences of failing to do so?

• Assessing the Appropriate Discipline: What roles do correction, deterrence and rehabilitation play in determining appropriate discipline? How do you ensure that the disciplinary measures are proportional to the misconduct involved?

• Aggravating Circumstances: What are aggravating factors that indicate a more severe disciplinary response is warranted? Does it matter whether the misconduct was deliberate or reckless? What role does an employee’s past record of misconduct play? Is an employee’s refusal to accept responsibility for his or her actions an aggravating factor in assessing discipline?

• Mitigating Circumstances: What are some mitigating factors that should be taken into account in assessing appropriate discipline? How important is a clear work record as a mitigating factor? Is provocation a mitigating factor? Should the discipline be reduced because of the employee's cooperation and/or remorse?