Canada: To Discipline Or Not To Discipline: It's The Employer's Prerogative
Labour, Employment and Human Rights Bulletin

Labour, Employment and Human Rights Bulletin

Several arbitration awards in the last few years have discussed the difference between discipline and administrative measures. The Quebec Court of Appeal recently upheld a decision¹ explaining that the difference between the two is sometimes the employer's intention to discipline and not only the willfulness of the misconduct or other elements.

Background

The school's principal invited the grievors, a group of teachers, to a social event marking the end of the school year. To show their dissatisfaction with the school's administration, the grievors decided not to attend the social event.

Hoping to resolve - or at least avoid exacerbating - the strained relationship, the employer decided to respond to the skipped social event without disciplinary action. Instead, the employer organized meetings with the grievors and distributed letters outlining its expectations, including better collaboration with the administration. In these letters, the employer wrote that it considered the grievors' actions akin to insubordination.

The union filed a grievance claiming that the letters were a form of discipline and should be retracted. The union said that if the employer considered the failure to attend the social event as willful misconduct, it had to follow the disciplinary procedure set out in the collective agreement. According to the union, the employer acted unreasonably in choosing to proceed with administrative actions because this deprived the grievors of the protections in their collective agreement related to discipline.

What was decided?^{2 3}

The arbitrator said that the grievors' behaviour could be construed as misconduct and disciplined. But the arbitrator decided that the letters were not disciplinary because they did not contain disciplinary language. Rather, the evidence showed that the employer made a conscious choice to avoid discipline to ease strained labour relations. The employer also emphasized that the letters were not included in the employees' disciplinary record or forwarded to the union, and that no adverse action had been taken against the grievors.

The arbitrator found that the employer had the management right to use administrative measures - like the letters - to deal with workplace issues. When the employer chose to forego disciplinary action in favour of another approach, the disciplinary procedures in the collective agreement could be bypassed. In short, the employer's intent to communicate its expectations to the grievors instead of imposing traditional discipline was determinative to the arbitrator's analysis.

Because the employer acted within its management rights and the measures imposed were administrative, the arbitrator said he could intervene only if the employer had acted in an abusive, unreasonable and arbitrary manner. This not being the case he denied the grievance.

The union asked the court to review the decision. The court dismissed the request. It agreed the collective agreement did not prevent the employer from choosing administrative measures over discipline in dealings with employees. The union appealed.⁴ The appeal court dismissed the appeal and confirmed the lower court's decision.

Takeaways for employers

This decision has a significant impact on day-to-day management. It supports the current case law trend recognizing that it is within management rights to choose to deal with employee misconduct by other means than regular discipline, unless stated otherwise in the collective agreement. In certain cases, this may mean protections or rules that would apply to discipline do not apply. It may also limit an arbitrator's ability to intervene because administrative decisions are reviewed differently than discipline.

But, administrative actions are not perfect. If an employer chooses to address employee issues by way of administrative measures, those measures - whatever that may be - cannot be relied on for progressive discipline. They could, however, be relevant in demonstrating that the employee was aware of the employer's expectations.

Footnotes

1 Syndicat de l'enseignement des Deux-Rives c. Commission scolaire des Navigateurs, 2019 QCCA 1800.

2 Syndicat de l'enseignement des Deux-Rives et Commission scolaire des Navigateurs*, 2017 QCTA 65.

3 Syndicat de l'enseignement des Deux-Rives c. Morency*, 2017 QCCS 5313.

4 Syndicat de l'enseignement des Deux-Rives c. Commission scolaire des Navigateurs, 2019 QCCA 1800.

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