Was termination excessive?
[36] All of the authorities submitted used the following non-exhaustive list of factors In William Scott to determine if discipline was excessive:
a. The seriousness of the offence
b. If the offense was premeditated, repetitive or an isolated incident
c. The length of service and if it was relatively free disciplinary
d. The use of corrective discipline
e. Inconsistent or harsh application of policies [37] For example, applying the same factors, in Ontario after determining that the Grievor disobeyed a direct order from his supervisor, the two-day suspension was found to be too severe and substituted with a warning letter. Additionally, in Canada Post Corp, notwithstanding the defiant disobedience of
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[42] Arbitrators typically find that implicit in the concept of just cause for dismissal is an Employer's requirement to take a progressive or corrective approach to discipline before imposing the ultimate penalty of discharge. Adherence to a disciplinary progression also avoids claims that employees were surprised or lacked warning of the seriousness with which the Employer regarded their misconduct. See Mitchnick and Etherington, Labour Arbitration in Canada, 2nd ed (Toronto: Lancaster House), at 10.9.3; Brown and Beatty pages 7-163 to 164 and North York. [43] I agree with the Employer's position that per Westfair, progressive discipline does not require that every first offence always be punished by a warning. Brown and Beatty lists insubordination as a serious offense warranting stepping out of the progression stages of a progressive discipline policy. Article 11.03 gives the Employer the right to forgo progressive discipline if the severity of the offence and/or the employee's record justifies it. However, as previously discussed this insubordination while serious is not the egregious type. Coupled with the requirement that the Employer must rely on the Grievor's clean record of employment not the actual record as per my finding in the preliminary judgement, there is no basis for the Employer not to impose progressive …show more content…
In Coast, when management inconsistently disciplined two employees, it was a mitigating factor. R. Bowlus disciplinary record which was led by the union shows that the Employer has inconsistently applied discipline for the same conduct. Approximately two months before the greivor's offense, R. Bowlus refused to follow his manager’s order and reassigned the work without authorization. The Employer gave him a written warning. It is my view that refusing and then undertaking to do management's job is a more serious offence than the griever's simple refusal. I find that the Employer has arbitrarily and harshly disciplined the Grievor. If the Employer didn't think it necessary to terminate R. Bowlus, it should not terminate the Grievor. [46] Although not a Wm Scott factor, the Employer is correct that evidence of early acceptance of responsibility such as an apology mitigates the appropriate penalty and a lack of it aggravates it. Nonetheless, I am persuaded by the union’s argument that as per HASS, the absence of an apology must aggravate the offence, especially when the case lacks belligerence or unreasonable denial of undeniable
In the collective bargaining agreement under Article XX Section 1, there is list of the causes for immediate discharge. Out of the fourteen causes that are listed, McNamara has committed five of the causes. McNamara has disobeyed the rules that applied to safety and disobeyed her supervisor when she was reprimanded the first few times. There was a neglect of duty, in the case of sleeping during a safety lesson and reading a magazine while on duty. She refused to comply with plant rules, in that she did not follow the safety rules that require employees to
In an express recognition that every sexual harassment case is likely to be profoundly circumstance-driven, Mansfield J appropriately focused on assessing the credibility of the witness, whether the alleged event did in fact occur, and whether it occurred in the way which she alleged it occurred, with a range of evidence before him. Some of the alleged conducts were directly denied: with regard to an April 2005 allegation concerning A Hickinbotham, after assessing the ‘reasonable’ time period in which the incident should have been reported given the surrounding circumstances (e.g. Poniatowska’s position at work), the judge rejected her claim on ground of the significant delay in reporting the incident. Reasonableness was again considered in dealing with a September 2005 allegation concernin...
The Missouri State Board of Nursing had several violation and disciplinary actions set for a hearing to review. The violation against one nurse was a second offense. A disciplinary action is for a first-time offense. Each action taken by the board is done with a group discussion and later deliberated to come to a final decision. The violators are then notified by mail. The two I chose are a violation and then a disciplinary action.
Dubuque Packing Co. (1982) Reasonable actions from employee would have been to take immediate steps, short of resignation, to work with management in order to address the intolerable working condition in an effort to make them more tolerable. Due to the fact that the former employee quit immediately after the new policy change was put into effect, shows that no actions were taken to resolve the intolerable working conditions.
In 1980, a precedent was set in a Michigan court case involving a man named Charles Toussaint who was suing his employer, BlueCross Blue Shield, for wrongful termination based on the guidelines set in the employee manual (Alfred and Bertsche 33). The manual stated that employees would only be terminated for just cause, and the court decided that Blue Cross had violated the agreements in the employee manual (34). The court also ruled that even with Blue Cross’s efforts to provide a document that “issued non-binding guidelines” the employee manual was a contract and Toussiant was wrongfully terminated (34). After the precedent set by this case many employers and employees for that matter were reviewing their employee manuals for the type of ambiguous language that could allow them to get sued or sue. Consequently, a slew of wrongful termination lawsuits followed this one, which is why it is now important for employers to draft their manuals with experienced legal staff. Even with the best legal team and the perfect wording there is still no definite assurance that an employer will be completely protected from such lawsuits, but taking these preventive measures helps in the long run.
Rodogno, Raffaele. "GUILT, ANGER, AND RETRIBUTION." Legal Theory 16.1 (2010): 59-76. ProQuest. Web. 13 May 2014.
There was evidence shown that the unfair dismissal requirements were the furthermost conflicting and inconsistent from the manager’s perspective. The Fair Work Act applied unfair dismissal requirements for entirely workers, regardless of the population of workers in the business (Chapman, 2015). The Fair Work Act presents two cases that dismissal could be reasonable, including other dismissal and summary dismissal. In the first case, the law offers a sequence of stages such as concluded checklist, copies of notice, declaration of dismissal and a witness announcement with signature that managers must follow with the intention to reduce the problem (Chapman, 2015). In the second case, managers may dismiss a worker without notice due to theft or fraud. As the consequence, the amount of cases in relation to unfair dismissal has risen significantly since the Fair Work Act implemented as law. In addition to the growing records of cases in relation to unfair dismissal, the judgements from Fair Work Australia showed some contradicting clarifications of the Fair Work Act (Chapman, 2015). According to an example, a business in Albury- Wodonga had dismissed an employee due to the breach of occupational and safety laws after an employee continually denied to wear safety glasses at work (Sloan, 2011). However, after checking the worker’s reinstatement, the Fair Work Australia stated that the worker had a family and he has found it challenging to
The purpose of this paper is to analyze a specific, hypothetical employment situation encountered and to include the information regarding employment conflicts, questions, grievances, lawsuits, etc., in terms of how the situation was handled or resolved. Employment conflicts are a constant issue everyday in any organization; it is how you handle them both legally and professionally that counts.
In dealing with a person’s livelihood, and often, sense of self, it is of no surprise that ethical issues regarding employment practices are of great concern. The issues of employment at will and due process contracts in the workplace are among the most widely contentious in the realm of employment. Employment at will is the doctrine that employment may be ended, by either party, for good, bad or no cause at all.1 Due process, on the other hand, is the employment practice in which a person may appeal a decision as a means of receiving an explanation and the opportunity to argue against it.2 Employment at will is the standard in the majority of private corporations today and is argued for relentlessly by freedom of contract enthusiasts, however, it is becoming ever more apparent that employment at will contracts reflect the old corporate maxim where the single bottom line, profit, is accented and the well being of other stakeholders, in this case the employee, are of little or no influence. Due process should be accepted as the prevalent employment system as it shelters employees from the hostile actions of the more powerful employer, provides a stable, bilateral contract between both parties and portrays the growing ethical concerns of society.
The Unfair Dismissals Act 1977-2007 was set up to give clear guidelines on how an employer’s decision to dismiss an employee may be contested by an independent body. The main purpose of this Act is to shield employees from unfair dismissals. It also provides for an adjudication system and a redress system to those employees whose dismissals have been found to be unfair.
Smith, the employee, was terminated for swearing at his supervisor via a series of phone conversations. The commission found that his language didn’t warrant termination, though they acknowledged that it was unacceptable behaviour. The bottom line is that it isn’t uncommon for swearing to occur in that industry and firing him was deemed unfair by the Commission. Verbal Attacks
Management maintains the right to direct all business activities. In order to retain as much authority as possible in the direction of the workplace, management has sought to include certain provisions in collective bargaining agreements. Management has no rights over individual people within the organization, but does maintain rights to property, which are real and legally enforceable. Management has sole discretion and flexibility in deployment and discipline issues and maintains the right to assign measures to people within the compa...
An employer may dismiss an employee for a fair reason - this means the dismissal is substantively fair and if the employer has followed a fair procedure - the dismissal is procedurally fair.
Part 2 of Employer Duties and Rights- management rights, subcontracting, just-cause discipline and discharge, and safety standards.