Industrial discipline in the Canadian federal jurisdiction

Relations Industrielles/Industrial Relations, Wntr, 1993 by Genevieve Eden

With the enactment of statutory laws governing dismissal for nonunionized workers in Canada, a key issue for inquiry is what approach adjudicators acting under this legislation have adopted with respect to industrial discipline. Most nonunionized workers in Canada are governed by the common law legal regime where, generally, the concept of progressive discipline in the workplace has been held not to apply. Conversely, in the unionized sector, progressive discipline has been described as one of the central principles of just cause in dismissal decisions rendered by arbitrators.

The perpetuation of the concept of progressive discipline over four and a half decades of jurisprudence is interesting given a perspective regarding this concept in the organizational behavior literature that stands in sharp contrast to the notion of discipline espoused by arbitrators. Given competing perspectives regarding the concept of discipline, and that, traditionally, it has not been applied in nonunionized settings, the approach adopted by adjudicators acting under a statutory regime will be informative.

This study involves an analysis of adjudicator decisions dealing with complaints of unjust dismissal under the Canada Labour Code. Section 240 et seq. of the Code provides statutory protection against unjust dismissal for nonunionized employees in the federal jurisdiction. The federal jurisdiction covers only about ten percent of all employees, but it includes workers in a number of particularly important areas of the economy. Federally regulated industries include interprovincial air, rail, shipping, ferry, and trucking operations as well as banks, radio broadcasting, grain elevators, uranium mines, atomic energy, and certain Crown corporations.

The main objective of the study is to determine whether the concept of progressive discipline has been adopted by adjudicators acting under the Code. In addition, the paper discusses how adjudicators have viewed progressive discipline, that is, its definition, application, and purpose.

This study contributes to the literature on decisions rendered under the Code by employing multivariate statistical procedures. The few past studies of unjust dismissal decisions under statutory regimes for the unorganized sector have been based primarily on the citing of cases. Some studies dealing with arbitral decisions rendered under collective bargaining regimes have used multivariate techniques; however, often with a limited array of explanatory variables (Stieber et al. 1985; Ponak and Sahney 1986; Bemmels 1988a, 1988b, 1988c). This study uses a wider array of determinants of arbitral decisions than used in most studies.

THE ARBITRAL MODEL

The significance of the concept of progressive discipline has been illustrated by reference to it in the industrial relations literature as one of the central principles of just cause in dismissal cases (Kochan and Barocci 1985:381) and as "the most significant arbitral development" (Failes 1986: 42).

Definition

In the arbitral jurisprudence, the concept of progressive discipline is normally referred to as penalties of increasing severity administered to the employee. These penalties include verbal warnings, written warnings, and escalating suspensions without pay (Adams 1978; Palmer 1983; Failes 1986; Dolan and Schuler 1987; Brown and Beatty 1988). Numerous cases have adopted this approach and have specifically required the imposition of suspension without pay prior to the ultimate penalty of discharge.(1)

Application

The theory of progressive discipline has evolved from the recognition by arbitrators of the importance of warning employees regarding the unacceptability of their behavior prior to the final act of discharge. Thus, employees are given an opportunity to correct their behavior. "Warnings are seen as being part of an underlying concept of fairness." (Failes 1986: 40).

Progressive discipline may not be required where the particular misconduct so seriously undermines the employment relationship that dismissal is justified without prior warning. Theft and fighting are sometimes cited as such serious offenses.(2)

However, in many cases, even such serious offenses are no longer deemed to constitute automatic cause for discharge.(3) In addition to a requirement to apply progressive discipline, other mitigating and aggravating circumstances are considered. It is well established that the grievor's previous record and length of service are important factors to be considered (Brown and Beatty 1988). Other principles considered are whether the employee's intent was deliberate or involuntary,(4) whether the employee expressed remorse for the wrongdoing,(5) and whether the wrongdoing was an isolated act of misconduct.(6)

While the failure to apply progressive discipline is only one of the factors considered by adjudicators in the determination of whether just cause for discharge exists, this concept has received so much attention in the arbitral jurisprudence that it constitutes the central focus of this study.