Many grievances result from disciplinary actions. Employers have the right to discipline employees for misconduct, but they must do so within limits set by law and legal precedent.
Employers must have “just cause” for their disciplinary actions. And that doesn't mean they can discipline you “just cause” they want to.
Stewards can use these seven questions to establish whether the employer has just cause. A “no” answer to any of them usually indicates the company acted without just cause.
1. Was the employee given advance warning that the behavior would or could result in discipline? The most obvious warning is a direct statement to the employee; for example, “If you continue to use that tool incorrectly, I'm going to have to write you up.” But advance warning may be contract language, information passed along during training, or company rules, whether written or verbal. Ask probing questions to determine whether any warning was ever given.
2. Was the rule or order reasonably related to the efficient and safe operation of the business? Arbitrary rules that offer no advantage to the company, or which make the workplace unsafe, do not provide just cause. For example, a rule banning listening to music while working may be justified as improving efficiency; a rule banning listening to hip-hop but allowing all other types of music is probably arbitrary and not just cause for discipline.
3. Did the employer try to determine whether the employee did, in fact, violate a rule or order of management? For example, if a supervisor merely sees an empty whiskey bottle near someone's work area and makes no attempt to find out who it belongs to or what it is doing there, then he does not have just cause to discipline anyone for drinking on the job.
4. Was the employer's investigation conducted fairly and objectively? Sometimes supervisors accuse workers of misconduct before getting all the facts. They may even ignore statements or evidence that points away from the person they want to accuse. The steward must investigate on his or her own to see if the company is ignoring some evidence or "railroading" the employee.
5. Did the investigation produce substantial evidence that the employee actually broke the rule? Just as with criminal cases in the courts, employers cannot rely entirely on circumstantial evidence or make judgments based on no facts or ambiguous facts. For example, finding contraband near an employee's workstation is not just cause for discipline; the employer must find evidence connecting that worker to the contraband.
6. Has the company applied its rules, orders, and penalties without discrimination? Rules must apply consistently to all employees. We usually hear of discrimination only when it applies to race, religion, gender, or ethnicity, but it more often shows up in less obvious forms. For example, if the workers who play on the company softball team often come in late the day after a night game and are not disciplined according to the rule on tardiness, then the company can't expect to enforce that rule on other workers. Likewise, the night shift shouldn't be allowed to break rules that the day shift is required to follow.
7. Was the degree of discipline given in this particular case related to a) the seriousness of the offense, and b) the employee's record of company service? Even if the worker clearly broke a rule or order, the employee may have a grievance if the discipline seems unfairly harsh for the offense. Likewise, a lifelong employee with a good work record deserves to have his or her many years of trouble-free employment taken into consideration when discipline is given.
Asking these seven questions can help stewards determine whether a worker has a legitimate grievance based on a disciplinary action.
