It pays to spend time drafting disciplinary letters. Failing to do so can have some serious consequences at least in the Unionized workplace. A recent case discusses the matter in helpful terms. In this case, the employer was able to dodge the Union's bullet.
The discipline letter was broadly drafted and included sweeping statements in support of the discipline imposed.
The Union argued that, despite that the only ground specifically referred in the discipline meeting and relied upon by the employer in imposing discipline was was that of double reimbursement. Accordingly, they argued that the Aerocide Dispensers Ltd., (1965) 15 L.A.C. 416 (Laskin) applied:
"The board is justified in a case of challenged discharge to hold the employer fairly strictly to the grounds upon which it has chosen to act against an employee who consequently feels himself aggrieved. This is not to say that the board should be overly technical in assessing an assigned cause of discharge but it does mean that it ought not to permit an assigned cause to be performed into one different from it merely because the evidence does not support the assigned cause but rather one something like it."
Accordingly, as a general rule, the employer may not alter the grounds cited for discipline once those grounds have been advance. In Carter Carburetor Division of A.C.F. Canada Ltd. (1977) 16 L.A.C. (2d) 166 (Adams)Arbitrator Adams (as he then was) said that the employer is "limited to the grounds upon which it first replied in discharging or disciplining an employee".
In Brown and Beatty, Canadian Labour Arbitration review the topic of the alteration of grounds of discipline and the Aerocide case and write:
"The principle that an employer cannot justify disciplining an employee on grounds that are different from those it gave when the penalty was actually imposed is, however, neither absolute nor inviolable. Many exceptions and limitations have been recognized."
"The cases reviewed in the preceding section demonstrate my task is to strike an appropriate balance between the dictates of fairness and the mandate to resole the real issue between the parties. Fairness and natural justice require that an allegation of misconduct, resulting in discipline, be made in a timely fashion so that an accused employee is able to gather exculpatory evidence before it is diminished or lost through the passage of time. An employer's failure to satisfy this requirement of natural justice can cause significant prejudice to a grievor."
The issue was put as follows by Arbitrator Munroe in Canadian Airlines International Ltd. (1988), 35 L.A.C. (3d) 66 (Munroe):
"...the true justification for the rule, if such it be, lies in the unyielding requirement of a fair hearing on the real substance of the parties' differences. To carry the rule further, and to refuse its relaxation even where there is no threat to natural justice and no real prejudice to anyone would be the sort of mistaken symbolism that tends to bring the system into disrepute. We also believe that to be the modern arbitral consensus..."
More recently in Inventronics Ltd. (2010), 101 C.L.A.S. 34 (Wood), the arbitrator concluded that the "test which has developed is more complex than that sought to be applied from the Aerocide Dispensers Ltd. decision".
To the same effect is the arbitrator's conclusion in Toronto District School Board decided a couple of weeks ago and the springboard to this post.
In short, while arbitrators have shown a willingness to be somewhat flexible when looking at the grounds for discipline where fairness demands it and where no real prejudice results. This being said, employers would be wise to consider their words (and their grounds) carefully when drafting disciplinary letters.
