Ensuring terminations are upheld at arbitration
By Brian Kreissl
While there is definitely a perception among employers and the general public that it’s nearly impossible to fire unionized employees, the reality is unionized employees are successfully terminated by employers all the time.
When I say “successfully,” I’m referring to the fact that arbitrators quite frequently order reinstatement of employees who were wrongfully terminated by their employers. That’s because, unlike most non-union wrongful dismissal actions before the courts, reinstatement can be ordered as a remedy in a labour arbitration.
In such a situation, arbitrators can and do substitute termination with a lesser penalty such as an unpaid suspension. This is generally enshrined in the collective agreement, and the idea is that a terminated employee should be given a second chance as long as the employment relationship isn’t deemed to be irreparable.
Yet, it is possible for a termination to stick where the employer has done its homework and handled the situation correctly and in accordance with the collective agreement, governing legislation and arbitral jurisprudence.
That applies for terminations either with or without cause. As long as an employer follows the provisions of the collective agreement, respects seniority, layoff and recall, “bumping” and other rights under the collective agreement and avoids terminating employees for their union activities or other statutorily prohibited motives such as those covered by human rights or occupational health and safety legislation, employers are allowed to downsize their unionized workforces. Such employees would be entitled to notice of termination under the collective agreement and the governing employment standards legislation.
The duty of fair representation
Nevertheless, many employers are afraid of unions and believe unions will protect even “bad apples” faced with termination. Indeed, many members of the general public (and likely some employers) believe the stereotype that unions care little for the hardworking employees who really need their help and support but will go out of their way to defend dishonest malingerers, thieves, bullies and troublemakers.
Indeed, Canadian labour relations legislation recognizes that unions have a duty of fair representation towards their members. For example, section 12 of the British Columbia Labour Relations Code states that a union must not act “in a manner that is arbitrary, discriminatory or in bad faith” in representing employees in the bargaining unit or in referring individuals for employment.
However, this does not mean a union is obliged to accept a grievance and bring it forward to arbitration, unless the labour board finds that the union has failed in its duty of fair representation. In fact, where the employer has an extremely good case for termination, unions can and do refuse to act on behalf of their members (but not before conducting a proper investigation themselves).
Practical tips for employers
Assuming the termination of a unionized employee was for cause, there are a number of things an employer can do to ensure the termination is upheld at arbitration. Above all, the employer must be familiar with the governing collective agreement and keep abreast of the law, including legislative developments and case law.
The employer must also apply the principles of progressive discipline and follow the appropriate disciplinary steps as detailed in the collective agreement and its own performance management programs. It is also important to keep accurate records, preserve evidence and maintain a proper paper trail to justify discipline and discharge. Employers should also consider the use of last chance agreements and adhere to the collective agreement with respect to “sunset clauses” and other relevant clauses.
It is extremely important to conduct a thorough, complete and unbiased investigation of any alleged wrongdoing and keep the union in the loop with respect to any findings. Unionized employers must also be adequately represented by a union representative with respect to any interviews, grievances, corrective action or any other type of disciplinary proceedings.
As long as the employer has acted in good faith and in accordance with the collective agreement and any governing legislation and case law, it is possible to terminate unionized employees. However, it is definitely a good idea to consult with a labour lawyer or qualified labour relations practitioner before making the decision to terminate.
One resource readers may find helpful is the forthcoming third edition of Carswell’s Canadian Labour Reporter Special Report: Dismissals in the Unionized Workplace, by Matthew Certosimo and Michelle Henry.
