AUFA wins another discipline case
In 2017, an AUFA member was accused of making a threat and eventually received a written warning. AUFA assisted the member to appeal the discipline. A hearing was held in 2019 and, last week, the appeal committee ruled the discipline was not warranted. AU must now remove the letter from the member’s file. Thanks are due to Jolene Armstrong and Nick Driedger for shepherding this file to completion.
Discipline at AU
Article 7 of the collective agreement outlines the process AU must follow if it wishes to discipline an AUFA member. Discipline is any form of sanction imposed upon an AUFA member, including (but not limited to) a written warning, reprimand, or censure, a denial of any benefit or right, a suspension (with or without pay), or dismissal.
Article 7 requires an investigation conducted by the member’s supervisor. AUFA members are entitled to AUFA representation during this process. AU may suspend a member with pay during a disciplinary investigation.
If, at the end of the investigation, AU wishes to impose discipline, it must give written notice that identifies the reason for the discipline. Discipline can be appealed.
Discipline entailing a loss of pay (i.e., a suspension without pay or dismissal) is held in abeyance until any appeal is heard. This delay is intended to ensure members are not financially harmed without reason.
Discipline Appeals
A discipline appeal is heard by a three-person panel. The panel comprises one AUFA nominee, one AU nominee, and a chair chosen by agreement. Typically, all three nominees are lawyers. The panel hears testimony and reviews evidence and renders a binding decision.
Typically, both AU and the AUFA member are represented by lawyers at the hearing. The collective agreement requires AU to pay for the costs of the panelists plus their own lawyer (so, roughly, 80% of the cost of the appeal).
This distribution of costs is designed to disincentivize frivolous discipline. It is also intended to limit the employer’s incentive to discipline in order to bankrupt the association.
In the most recent case, AUFA’s legal costs were in the neighbourhood of $25,000 (plus staff and volunteer time). This suggests AU’s costs were likely in the neighbourhood of $100k.
AU’s efforts to undermine discipline language
Over the past few years, AU has tried to undermine the discipline process in two main ways.
First, it has tried to grind the discipline provisions in the contract down during bargaining. During the last round, AU proposed:
limiting what AUFA representatives could do during a disciplinary investigation,
that suspensions with pay and dismissals take immediate effect (instead of being held pending appeal), and
that the cost of the appeal panel would be split 50/50.
These proposals would have made it easier and cheaper for AU to discipline, by shifting costs to AUFA members and AUFA. AU eventually abandoned these proposals after AUFA members rejected them by wide margins in a straw poll, the bargaining team walked away from the table, and the members began direct action efforts, such as information pickets.
Second, AU has just ignored the discipline provisions when it suits them. For example, in one case, the employer issued a disciplinary letter but failed to provide particulars (i.e., tell the member what the discipline was in response to).
AUFA grieved this discipline as defective. AU refused to remedy this obvious defect and eventually, after a long delay that was emotionally punishing to the member, an arbitration hearing was held. The employer arrived at the arbitration and admitted that the letter was defective. Not surprisingly, the letter was then tossed out.
In another case, AU imposed dismissal and just fired the member (somehow forgetting that dismissals are held pending the result of any appeal). AUFA got the member reinstated during the appeal process.
In yet another case, AU placed a letter of a censure on a member’s file (mine, as it happens) without going through the disciplinary process. Letters of censure are specifically named as a form of discipline in Article 7. After rather ridiculously arguing that the letter was a non-disciplinary disciplinary letter, AU decided to withdraw the letter.
In yet another case, AU went through a disciplinary hearing and told the employee they had done something bad. But, instead of putting a letter of discipline on the employee’s file, they placed a letter of expectation on the file. The letter of expectation looked a lot like a letter of discipline (including recording a number of contestable allegations) and can be used by the employer to build a termination case. But, AU argues, because it is not a disciplinary letter, the AUFA member has no way to appeal or otherwise fight the allegations in the letter of expectation. This issue is subject to a grievance.
Analysis
Disciplining a member (including terminating them) is a powerful way for the employer to shape workers’ behaviour. Even the threat of discipline is powerful, reflecting that the powerful rarely have to exercise their power to get their way.
AUFA’s collective agreement contains a number of procedural rights that temper AU’s otherwise unfettered ability to discipline. AU’s track record on discipline suggests that these procedural safeguards are very important for AUFA members. In short, AUFA members simply cannot trust that AU will be fair or correct during disciplinary investigations.
Bob Barnetson, Member
AUFA Grievance Committee
Note: AUFA does not usually discuss grievances in public for privacy reasons. The members affected by the grievances discussed above consented to this blog post being published.