Legal Principles - The Basics

Basic Obligations

The employment relationship, particularly when it is governed by a sophisticated collective agreement, can be very complex, but at its root are some simple principles. These principles continue to apply in the collective bargaining setting, unless they are expressly changed by the employer and its trade union. An employer agrees to employ the employee for a particular job and to pay the employee a stipulated rate. By accepting employment, the employee agrees to attend at work regularly and to perform the work with reasonable competence. The employee also implicitly agrees to perform work honestly and faithfully and to accept the lawful directions of the employer.

Culpable and Non-Culpable Conduct

Employees may breach their obligations in either of two ways (or in a mixture of both). The first involves what is called culpable conduct, which is blameworthy conduct. Culpable conduct may lead an employer to impose discipline. Disciplinary measures are penalties, which are designed to make clear to an employee that his or her conduct must be corrected, or further penalties, up to and including dismissal, may be imposed.




Culpable conduct can lead to progressive discipline




In extreme cases, such as theft or assault, misconduct may lead directly to dismissal from employment. But in most situations, misconduct calls for progressive discipline. Progressive discipline is an approach calling for progressively more severe discipline until such time as an employee either corrects her or his misconduct or is terminated from employment.

The second breach of obligation is referred to as non-culpable conduct, which is non-blameworthy conduct. Non-culpable conduct cannot legally be corrected with discipline.




Non-culpable conduct cannot legally be dealt withy through discipline.




Discipline, is inappropriate in a circumstance in which the employee cannot be faulted for the poor performance. This may occur where the employee is excessively absent from work due to medical causes.

This may also occur where an individual is simply no longer capable of performing the job to an acceptable standard-through disability, or lack of aptitude, for instance. Subject to the human rights issues, which can arise in these circumstances and where accommodation for a disability may be appropriate, persons who do not hold up their end of the employment bargain can ultimately be discharged. This is so even if their poor performance cannot be rectified due to matters that are beyond their control.

Often, there is a mixture of both culpable and non-culpable conduct in the same set of circumstances, and many times it can be difficult to tell whether conduct is blameworthy or not. The issues involving culpable and non-culpable conduct are so different that they must be treated separately.

The Importance of Due Process

In a discipline case, the employer has the onus of proof. This means that the employer has the legal burden of proving both that the discipline was warranted and that the magnitude of discipline was reasonable in the circumstances. If the arbitrator finds that discipline was not warranted, the discipline will be revoked. If the arbitrator considers that discipline is appropriate, but disapproves of the severity of discipline that was issued, the arbitrator can substitute a different measure of discipline. This kind of inquiry addresses the merits of the case.

An arbitrator may also be asked to inquire into the process followed by the employer in reaching its decision to discipline. The focus in discipline cases was once almost exclusively on the alleged offence – that is the merits of the case. Needless to say, this remains very important, but the question of fairness in the investigation process has taken on a life of its own as a major issue in labour arbitration proceedings where the following questions are often asked:

• Was the employer thorough in its investigation?
• Were the employer representatives biased against the employee from the outset?
• Did the employer provide proper notice of and allow the employee to have a shop steward at the disciplinary meeting?
• Did the investigation allow the employee to provide full answer to the allegation? Did the employer overlook or withhold evidence during the investigation?



Procedural flaws may in some cases result in an arbitrator declaring discipline to be void, namely, without any legal effect.

Subjective fairness has always been an essential component to a legitimate discipline process. But subjective fairness is not enough. It is now important that the actions of managers not only be fair but clearly be seen to be fair.




The actions of managers must not only be fair, but clearly be seen to be fair.