In a unionized workplace, the employer requires just cause to discipline or discharge an employee. If an employee is disciplined and disagrees with the explanation provided by the employer, the collective agreement will contain a grievance process to follow to settle the dispute.

This article provides an introduction to the discipline of unionized employees for just cause. It also reviews a recent decision of the Ontario Superior Court of Justice Divisional Court, in which a union challenged the termination of an employee following a finding by the employer that he had stolen two rugs.

When can an employer discipline a unionized employee?

“Just cause” is the basis on which an employer decides to discipline or discharge a unionized employee. 

It is crucial that employers only discipline employees when their actions are deserving of such treatment because the union may challenge the employer’s response through the grievance procedure. A grievance procedure involves attempting to settle and if this fails, proceeding to arbitration for a binding decision.

The employer bears the onus of proving in the arbitration that it had just cause to discipline or discharge the employee.

What type of acts may justify discipline or discharge?

Whether just cause exists to justify discipline or discharge depends on the particular circumstances. Just cause might be found if the employee:

• fails to obey a direction given by the employer,
• vandalizes property or engages in violent behaviour,
• breaches trust, for example by violating confidentiality or soliciting clients,
• engages in dishonest or illegal conduct, or
• fails to attend work for the duration of the shift without a legitimate excuse.

When is discharging an employee appropriate?

Following a finding of just cause, the employer may apply a penalty, ranging from a warning, to a suspension or demotion, to discharging the employee. Discharging an employee might be appropriate in response to serious misconduct or repeat behaviour, suggesting that the employment relationship cannot be maintained.

If an arbitrator determines that the employer had just cause to impose discipline, the arbitrator will normally decide if the employer applied an appropriate penalty. After considering the employee’s conduct and circumstances, the arbitrator will decide whether the penalty was appropriate or should be changed to an alternative option.

Arbitrators will consider any aggravating or mitigating factors when determining a penalty. The former may include repeat misconduct and dishonesty during the investigation, while the latter could include having a long period of employment, it being an isolated incident and the fact the employee was provoked.

Employee terminated after the employer concluded he stole goods 

In the case of Labourers’ International Union of North America, Local 183 v Multy Home LP, the unionized employee worked for a company that made and sold rugs and other goods. Surveillance footage showed the employee putting four rugs into a co-worker’s car, which he drove to the edge of the parking area where he put two of the rugs into his own car.

The co-worker had paid for four rugs and received two prior to the day in question. He told their employer that he was collecting the other two rugs when the employee offered to load them into his car, along with two that the employee had purchased.

The employee disagreed with this explanation, telling the employer that he loaded four rugs into his co-worker’s car, representing the number the co-worker had purchased. He did not comment on the transfer of two rugs into his vehicle.

Based on this information, the employer decided that the employee stole two rugs and terminated his employment for just cause.

Arbitrator decided employee’s termination for just cause was justified

The union filed a grievance challenging the employee’s discharge. After being terminated, the employee provided a different explanation claiming that he ran a catering business and the co-worker gave him two rugs in exchange for providing a lunch of Caribbean pork. During the hearing, the co-worker rejected this explanation, stating that he was Hindu and did not eat pork.

The arbitrator agreed with the approach taken by the employer, finding that, on a balance of probabilities, the employee stole two rugs from the employer. The arbitrator rejected the explanation provided by the employee.

The union appealed the arbitrator’s decision to the Ontario Superior Court of Justice. Since a grievance decision is final, the jurisdiction of the Court is limited to judicial review of the arbitrator’s decision. This means that the union must show that the arbitrator’s decision was unreasonable, unlawful or unfair.

Court refused to interfere with the arbitrator’s finding

The Court emphasized that the appeal was not an opportunity to determine the facts afresh. It decided that the arbitrator was entitled to prefer the co-worker’s evidence over that of the employee, and it summarized the case against the employee as follows:

“The theft is shown on the video surveillance recording. Either or both of the [employee] and [the co-worker] may have been responsible for the theft. Based on the [employer’s] investigation, the [employee] failed to acknowledge that he had placed two of the rugs in his own car and failed to provide any explanation for doing that. This lack of candour was a sufficient basis upon which the [employer] could conclude that the [employee] was party to the theft.”

As a result, the arbitrator’s decision that the employer had grounds to discharge the employee for just cause was reasonable in the circumstances. The Court ultimately rejected the union’s appeal.

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Advice on Discipline or Discharge Grievances

The knowledgeable labour lawyers at Grosman Gale Fletcher Hopkins LLP advise unionized employers on various labour relations issues. Our trusted labour law team has provided guidance and advice on discipline and discharge grievances since 1983. We understand the need to address employee misconduct before it turns into a costly problem, which is why we work quickly to manage and resolve the issue before it turns into a grievance. For assistance with labour matters, contact the team at Grosman Gale Fletcher Hopkins LLP online or call us at 416.364.9599 to schedule a consultation.