The employer is responsible for meeting the burden of proof in disciplinary matters. A consideration of whether Management has met its burden of proof by showing “Just cause” In disciplinary and discharge matters, would necessitate answering the following questions in view of the facts surrounding the disciplinary action. The questions reflect the seven standards frequently applied by arbitrators. Can the employer answer yes to all the questions below since they have the burden of proof?
- Was the employee warned in advance that certain behavior could result in discipline? The rule and penalty must have been communicated to the employee in advance. Employee must be told of the consequences of his or her actions. Certain offenses, i.e. major theft or violence on the job, may not require forewarning.
- Were the employer’s rules reasonable? Could an employee be expected to follow the rule or policy in question or would this be impossible? Are the rules available and understandable? Remember, unless you believe obeying a rule or order will seriously and immediately jeopardize your personal safety and/or someone else’s, it’s best to “obey now, grieve later”.
- Was there an investigation before the discipline? Did the employer, before administering the discipline, make an effort to discover whether the employee did in fact violate or disobey a rule or employer’s order?
- Was the investigation conducted fairly? Was the investigation done fairly and impartially or was there evidence of an effort to “burn” or “trap” an individual employee for practices that are generally unchallenged? Did the employer talk to all witnesses? Was the grievant given a chance to explain the incident? Are there extenuating circumstances behind the employee’s action? The investigation should be completed in a timely manner and remain objective without rushing to judgement before obtaining all the relevant facts.
- Did the investigation turn up substantial evidence of wrongdoing? Did this investigation uncover any substantial proof or evidence that the employee was guilty of violating or disobeying a direct rule or order? Although there is no requirement of being preponderant, conclusive, or “beyond a reasonable doubt,” any proof or evidence must be truly substantial. While conducting the investigation, the employer must actively seek out witnesses and search for evidence. If an offense cannot be proven, then no penalty could ever be considered just.
- Are the rules enforced uniformly and consistently? Is there evidence of discrimination or harassment? There may be others with similar or worse work records who have not been disciplined. This can often, but not always, be used to show unequal treatment. However, the employee’s past disciplinary record may be used to justify a more serious penalty.
- Does the punishment fit the “crime” and the past record of the employee? Discharging an employee for a single absence or for a minor violation of management rules is generally considered inappropriate. Was there progressive discipline? An employee’s record of good behavior may form the basis for a lesser penalty. The burden of proof shifts to the Union to demonstrate that a penalty is too severe.