Bargaining Analysis 2: AU’s discipline proposals

This post is the second in a series of blog posts that provides more detailed analyses of both AUFA’s and AU’s proposals. This blog examines AU’s proposed changes to our discipline language. AUFA has not proposed any changes to these provisions.

Current Language

Article 7 of the current collective agreement allows AU to investigate alleged misbehaviour by AUFA members. You are entitled to AUFA representation throughout the process.

Investigations are supposed to be completed by your supervisor but, in practice, HR generally does the investigation. At the end an investigation, AU may apply discipline. Discipline can range from a letter of reprimand up to termination of employment.

Discipline is subject to an appeal process. If the discipline imposed by AU results in an interruption of AUFA member’s income (i.e., suspension without pay or termination), the discipline is held in abeyance pending the outcome of any appeal.

Appeals are decided by a three-person appeal panel comprising one person appointed by AUFA, one person appointed by AU, and a third person jointly appointed by the AUFA and AU appointees who chairs the panel. Both AU and AUFA have legal counsel present their case to the panel, which renders a binding decision.

Appeal hearings can take several months to schedule (e.g., the most recent case is 9 months from discipline to hearing) and additional time to receive a decision. These scheduling delays are often due to the unavailability of AU’s legal counsel. During this period, AU has the option of suspending a member from their duties with pay or allowing the member to continue working.

The appeal process is expensive for AU because AU must pay for the costs of the appeal panel plus the cost of lawyer to present AU’s side. AUFA covers the cost of a lawyer to represent an AUFA member. AU bearing approximately 80% of the cost of a discipline appeal creates an incentive for AU to discipline members only when discipline is clearly warranted.

AU’s Proposed Language

AU has proposed two significant changes to Article 7.

AU is proposing that all discipline would take effect immediately. This is different from current practice, wherein discipline that interrupts an AUFA member’s income is held in abeyance pending the outcome of any appeal. This change would mean the imposition of discipline would create immediate financial consequences for AUFA members.

AU is also proposing that the current appeal system would be replaced by the existing grievance process (i.e., AUFA would grieve rather than appeal). The cost of a grievance is split 50/50 between AUFA and AU, so this proposal would save AU a significant amount of money. Grievances have multiple steps before reaching the arbitration stage.

At present, it can take 18 months to schedule a grievance hearing (again typically because of the unavailability of AU’s legal counsel). This additional delay would compound any interruption of income created by AU’s first proposed change

Implications

AU’s proposed changes to Article 7 would negatively affect AUFA members in three ways:

• An AUFA member who is suspended without pay or terminated would immediately be without income.

• The delays inherent with the grievance process would mean this income loss could persist for years.

• All AUFA members would bear higher costs to defend AUFA members because of AU’s proposed reallocation of costs.

Together, these changes would make it easier and cheaper for AU to discipline AUFA members.

AU’s proposals to make it easier and cheaper to discipline AUFA members must be considered in light of AU’s past behaviour when enacting discipline. Here are some examples since 2017:

• AU ignored the discipline provisions by issuing a disciplinary letter but not to telling the member what they had done wrong. AUFA grieved this discipline as defective. AU refused to remedy this obvious defect and, 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 arbitrator tossed the letter out.

• AU imposed dismissal and fired the member, somehow forgetting that dismissals are held pending the result of any appeal. AUFA got the member reinstated during the appeal process.

• AU placed a letter of a censure on a member’s file (mine, as it happens) without going through the disciplinary process. This discipline was imposed for violating a rule that did not exist. 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.

• 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 (i.e., required changes in performance) 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.

• AU accused an AUFA member of making a threat and eventually issued a written warning. On appeal, the appeal panel ruled that the discipline was not warranted and HR had mis-understood the standard required to enact discipline.

This pattern of behaviour suggests it is not in AUFA members’ interests to make it easier for AU to enact discipline.

Your Views

AUFA’s bargaining team is interested in hearing the views of the AUFA membership about this proposal. To that end, we have created a short survey.

Bob Barnetson, Chair

Job Action Committee