APPENDIX 3 - The Arbitrator's Viewpoint

Arbitrators have asked the following types of questions in assessing whether particular disciplinary measures were justified:

• Was the employee given advance warning(s) of the possible or probable disciplinary consequences of her/his conduct?
• Did the employer make earlier efforts to educate/rehabilitate the person causing the problem?
• Was the specific discipline based on the progressive discipline approach?
• Was the rule broken or order disobeyed reasonably related to the efficient and safe operation of the work area?
• Before administering discipline, did the employer make an effort to discover whether the employee did, in fact, violate a rule or order of management?
• Was the employer's investigation conducted fairly and objectively and was it fully completed before disciplinary action was taken?
• Was the employee given an opportunity to give her/his side of the case?
• Did the investigation produce substantial evidence or proof that the employee had committed the offense?
• Had the employer applied its rules, orders, and penalties without discrimination (i.e. consistently throughout the organization)?
• How severe is the problem or infraction?
• Have there been other discipline problems in the past, and over how long a time span?
• Is the current problem part of an emerging or continuing pattern of discipline infractions?
• How long has the employee worked for the organization, and what was the quality of performance?
• Was the employee provoked in whole or in part to commit the nonperformance?
• Are there extenuating circumstances relating to the problem (e.g. an employee's economic hardship, domestic and emotional problems)?
• Did the employee commit the offense on the spur of the moment as a result of a momentary aberration due to strong personal impulses or was the offense premeditated?
• Was the degree of discipline administered in the particular case reasonably related to:
• a) the seriousness of the employee's proven offense; and,
• b) the employee's work record?

In regard to discipline for breaches of employer policy:

Factors taken into consideration by arbitrators when reviewing grievances arising from breaches of policy (or rules) unilaterally imposed by an employer:

1. The Policy must not be inconsistent with the Collective Agreement(s).
2. The Policy must not be unreasonable.
3. The Policy must be clear and unequivocal.
4. The Policy must be brought to the attention of the employees affected before the employer can act on it.
5. The Policy must have been consistently enforced by the employer from the time it was introduced.