Local Rep Resources Basic Labour Law Principles Basic Labour Law Principles Employers imposing discipline on PEA members: Is this just and reasonable? Whereas the burden of proof lies with the union for most grievances (e.g., failure to pay overtime, promotions, failure to accommodate, harassment, etc.), the employer bears the burden of proof when it comes to discipline (including termination of employment). This means that the employer has to have a justifiable reason for their actions. Different from criminal law, the standard of proof is based on a "balance of probabilities" and not "beyond a reasonable doubt." If the matter goes in front of an arbitrator or a tribunal, for example, evidence will be considered and the award will be reached based on what was thought to be more probable than not. Put in more common terms: Who's story is more convincing the employer's or the union's? The arbitration award that is most commonly cited when discipline is the subject is William Scott (1976). The specifics of the arbitration are less important than the questions that the arbitrator sought to answer. It is these questions that are still being asked by unions, employers and arbitrators to this day. They are as follows: 1. Has the employee given just and reasonable cause for some form of discipline by the employer? 2. If so, was the employer's decision to discipline the employee an excessive response in all of the circumstances of the case? 3. What alternative measures should be substituted as just and equitable? Further, in connection to question number 2 above, the following must be considered: •
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How serious is the immediate offence of the employee? Was the employee's conduct premeditated, or repetitive; or instead, was it a momentary and emotional aberration, perhaps provoked by someone else (for example, in a fight between two employees)? Does the employee have a record of long service with the employer in which he/she proved an able worker and enjoyed a relatively free disciplinary history? Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem? Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment? A union of professionals making a difference in BC 505-­‐1207 Douglas Street, Victoria, BC V8W 2E7 Telephone: 250-­‐385-­‐8791 Toll Free: 1-­‐800-­‐779-­‐7736 Visit us online at pea.org