In a Manitoba case involving Dominion Malting Ltd. He admitted to smoking the substance during working hours on numerous occasions over at least a four- to six-week period. The apparent irony of unions coming before them to argue that there should be no penalty for a safety infraction, when one of the mandates of unions is to seek improvements to workplace health and safety for its members, has not been lost on arbitrators.
It is our view that the company, the union and the employees should be vigilant in their observance of safety requirements. As can be seen, expectations of due diligence by courts and arbitrators are echoed in expectations of progressive discipline. However, only the court considering a wrongful dismissal action or a tribunal considering a grievance will be concerned about the impact on the individual employee and whether discipline was properly and fairly imposed.
In contrast, a court dealing with a prosecution case and considerations of due diligence is never concerned with whether the discipline was fair, consistent, based on the facts, or even upheld by a court or a board of arbitration subsequently considering the issue.
Rather than becoming confused and overwhelmed by these two separate considerations, management must consider them together and balance them. On the one hand, discipline for safety infractions must occur and be sufficient to satisfy a court that discipline is integral to your health and safety system. On the other hand, discipline must not be so onerous or unfair that it violates important principles developed to protect individual employees.
With arbitrators and other decision makers increasingly recognizing employer obligations under health and safety legislation, why does it seem that so many disciplinary responses of employers are overruled?
We all know of cases in which a disciplinary suspension was reduced or a discharge replaced with reinstatement. Among them is the expectation that the rule being enforced has come to the attention of the employee affected, through training and orientation, posting of rules or safety reminders. If there is no sign-off or documentation to establish that the affected employee knew or received notification of the rule, the company is unable to realistically continue in its efforts to enforce the rule against the employee in arbitration.
Rules must be consistently enforced. This includes constant enforcement, as well as consistency of treatment of all employees at the workplace. For example, in Alcatel Telecommunications Cable Winnipeg Plant 6 a worker received a one-day suspension after placing his hands in moving equipment which had not been locked out and was not fully stopped. Evidence was called to suggest that other individuals who had committed serious infractions, such as forklift operators backing up carelessly, or running into power panels, or employees attending work under the influence of alcohol, had not been treated with similar severity.
In this case, there was a one-day suspension imposed. I must accordingly consider whether there was discriminatory treatment against the grievor. Because of inconsistent application of the progressive discipline procedure, the suspension was reduced to a written warning. The final most important matter scrutinized by decision makers is the amount of discipline. The appropriate penalty in any given case will always be reviewed from the perspective of progressive discipline; that is, because discipline is to be corrective, not punitive, progressively more significant penalties are imposed, with more severe penalties following repeat occurrences.
The only permitted exception may be for a safety infraction having significant potential consequences. Decision makers also review a range of mitigating factors, including long service, a spotless prior disciplinary record, immediate apology and commitment to change behaviour on the part of the employee, or a low risk of potential injury as a result of the safety infraction.
In a British Columbia arbitration case involving Northwood Inc. Upper Fraser Division 8, for example, discharge for an extremely serious infraction of failing to lock out a conveyor was reduced to a four-month suspension. The contrite worker established that although he had been trained in procedures, his training left him unclear about the situation he had encountered, and he had panicked in attempting to respond.
Decision makers also look to aggravating factors which would include actual or potential injury to the worker or others, short service, lack of admission or contriteness, or the fact that the matter is a repeat infraction for the employee. In Re Casco Co. The imposition of discipline is not a simple task, particularly in a unionized environment where disciplinary decisions are subject to arbitral review, and a series of subtle legal considerations must be applied to issues of when to discipline and how much is appropriate.
It is crucial for employers to have some insight into the attitudes of courts and tribunals, and ongoing training in how to balance expectations of due diligence with fair and progressive discipline.
Failure to tackle the attitudes, frustrations and confusion of front-line supervisors responsible for discipline will unfortunately, and inevitably, lead to repetition of the courtroom scene described at the outset of this article.
Cheryl A. Edwards is a partner with the management labour and employment firm of Stringer, Brisbin, Humphrey in Toronto. A former prosecutor with the Ontario Ministry of Labour, her management practice emphasizes occupational health and safety advice, representation and in-house training.
Chapman, November 21, , available on quick-law at [] M. MacDowell, August 8, , available on quick-law at [] O. Chapman, July 4, , Winnipeg, available on quick-law at [] M. Devine, September 30, , available on quick-law at [] B.
Greetings Please kindly explain what action needs to be taken when staff do no follow the OHS procedures when safety induction was done. Your email address will not be published. If an employee is applying for another position within Vanderbilt and has received a disciplinary action within the preceding 12 months, the employee is required to share with the hiring manager, prior to the job offer, the circumstances and severity of the disciplinary action.
This information may be a deciding factor in the hiring decision. In addition, failure to make this required disclosure may lead to progressive discipline up to and including termination of employment. An employee is expected to have sustained improvement while on progressive discipline.
Should an employee be away from work for an extended and continuous period of time under any Vanderbilt University leave policy, the disciplinary action step may be extended by the time the employee was away from work and the employee would be given the opportunity to demonstrate improved behavior once the employee returns to work. Extending progressive discipline should be done in consultation with Human Resources. The purpose of progressive discipline is to assist employees by being clear and precise about problems and the consequences if the same or other mistakes or misconduct reoccur.
It is important that discipline is applied in a fair and consistent manner. The supervisor has a critical role in conducting a fair and objective investigation of a situation. An investigation may be as simple as confirming a late arrival through a time clock or more complex with interviewing many employees and reviewing documents.
More complex investigations should be conducted in coordination with the Human Resources Consultant and other institutional offices, as needed. The supervisor should review all relevant documents, review how the employee was notified of the expectation that has been violated, speak with any witnesses and obtain written statements, if appropriate and ask the employee about the situation. The conversation with the employee should include asking if any extenuating or mitigating circumstances exist.
An employee may be placed on a paid administrative leave during an internal investigation. The supervisor must have an understanding of the facts and circumstances before assessing appropriate discipline. The supervisor should discuss the situation with a Human Resources Consultant to determine the appropriate level of disciplinary action. Many situations should be able to be resolved through verbal counseling or discussion with the employee; however, some one-time incidents may be severe enough to merit a formal written warning, suspension without pay , final warning or termination.
The seriousness of the offense and the employee's disciplinary and performance history will be considered when determining the level of discipline to be applied. All decisions to escalate disciplinary action to a higher level of discipline should be made in consultation with Human Resources.
In these situations, the totality of the circumstances will be assessed when determining appropriate action. The purpose of a verbal warning is to clarify policies and expectations. The impact of the incident or violation should also be taken into consideration.
The supervisor should document for his or her records that the conversation occurred, keeping in mind the significance of the impact of the act or omission.
If the conduct addressed by a verbal warning is repeated or additional problems occur within 12 months of a verbal warning, the supervisor should follow up with a written warning in the form of a letter. On the other hand, if a single incident is more serious than is appropriate for a verbal warning, the supervisor should issue a written warning in the form of a letter.
The letter should describe the unacceptable conduct, outline expectations, and state that further disciplinary action will occur if the behavior is repeated within 12 months.
If the conduct addressed by the written warning is repeated or additional problems occur within a month period, discipline may progress to a final written warning, which may include an unpaid suspension.
However, a single incident may be so severe as to merit an immediate final warning and suspension without pay. As noted above, the supervisor should work in consultation with Human Resources prior to taking disciplinary actions at higher levels, such as written warnings, final written warnings with or without unpaid suspension and termination. Employment may be terminated based on progressive discipline within a month period or based on the severity of a single incident.
Misconduct that involves dishonesty, violation of the law, or significant risks to Vanderbilt operations or to the safety or well-being of oneself or others is grounds for immediate termination of employment. However, the facts and circumstances of each case will determine what action, up to and including discharge from employment, is appropriate.
Decisions to terminate employment should be made in consultation with Human Resources.
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