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05 February 2020
In recent years, several arbitration awards have considered the difference between disciplinary and administrative measures. The Quebec Court of Appeal recently upheld a decision, explaining that the difference between the two may be not only the wilfulness of the misconduct or other elements, but also the employer's intention to discipline.(1)
A school 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 did not attend the event.
Hoping to resolve – or at least avoid exacerbating – the strained relationship, the employer undertook no disciplinary action. Instead, the employer organised 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 and argued that if the employer considered the failure to attend the social event to be wilful misconduct, it had to follow the disciplinary procedure set out in the collective agreement. According to the union, the employer had acted unreasonably in choosing to proceed with administrative actions because this had deprived the grievors of the protections in their collective agreement relating to discipline.
The arbitrator stated that the grievors' behaviour could be construed as misconduct and that they could be disciplined.(2)
However, the arbitrator decided that the letters were not disciplinary because they contained no disciplinary language. Rather, the evidence showed that the employer had made a conscious choice to avoid discipline in order to ease the strained labour relationship. The employer also emphasised that the letters had not been included in the grievors' 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 – such as the letters – to deal with workplace issues. When the employer chose to forgo 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 a determining factor in the arbitrator's analysis.
The arbitrator stated that he could intervene only if the employer had acted in an abusive, unreasonable and arbitrary manner. As the employer had acted within its management rights and the measured imposed were administrative, the arbitrator denied the grievance.
The union asked the court to review the decision. The superior court dismissed the request.(3) It agreed that 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.
This decision will significantly affect employers' day-to-day management. It supports the current case law trend which recognises that employers have the right to choose how to deal with employee misconduct by means other than regular discipline, unless stated otherwise in the collective agreement. In certain cases, this may mean that protections or rules which would normally apply to discipline do not. It may also limit an arbitrator's ability to intervene because administrative and disciplinary decisions are reviewed differently.
However, administrative actions are not perfect. If an employer chooses to address employee issues by way of administrative measures, those measures cannot be relied on for progressive discipline; however, they could be relevant in demonstrating that an employee was aware of the employer's expectations.
For further information on this topic please contact Émilie Sylvain-Jacques at Fasken by telephone (+1 418 640 2000) or email (firstname.lastname@example.org). The Fasken website can be accessed at www.fasken.com.
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