With this one simple mistake, an employer can lose even the
most airtight case
It's a familiar theme of police television dramas: everyone
knows the bad guy committed the crime, but the police don't do
everything by the book and the villain gets away on a
"technicality." The police force winds up looking
foolish, the prosecutor chews out the detectives involved, and our
heroes have to find another way to bag their criminal.
In much the same way, an employer will lose an arbitration if it
is found that it breached the employee's right to shop steward
Under most collective agreements, the employer must permit a
shop steward to participate and offer advice as an advocate for the
employee during investigatory or disciplinary meetings. If the
employee has the right to union representation under the collective
agreement, and meetings are held with the employee without union
representation (absent informed consent by the employee), any
discipline of the employee that is based on information provided by
the employee during the meetings will be overturned as void ab
initio. In other words, the employee escapes discipline of any
kind, the employer loses face, and, unlike the television shows,
there's usually nothing that can be done to prevent the
"bad guy" from getting away scot-free. If the discipline
is void ab initio, the employer is unable to go through
the process again for that particular employment offence and try to
do it right the second time - no matter how serious the
disciplinary offence might have been.
Arbitrators have also rendered discipline void ab initio in
cases where an unrepresented employee had repeatedly declined the
employer's suggestion that the employee have union
representation. This is based on the point that employees may only
decline representation on the basis of informed consent;
for the consent to be effective, the employee needs to know exactly
what he or she is waiving when declining representation.
Practically speaking, this means that any employee who wishes to
decline union representation should be required to sign a written
waiver of his or her right to shop steward representation. Among
other things, the waiver should outline the role that the shop
steward plays in investigatory meetings and contain an
acknowledgment that disciplinary action may be taken as a result of
information obtained during the meeting. The employee should also
be given 24 hours to review the waiver and seek advice from the
union or others before signing it.
Employers should not try to solve this issue of "informed
consent" by forcing shop steward representation on all
employees. Unless the collective agreement mandates shop steward
representation, if an employee properly declines shop steward
representation, the employer should not have a shop steward present
at meetings. The employee could challenge any discipline on the
basis that the employee did not provide the employer with a proper
explanation because he was inhibited by the presence of the shop
steward. For example, the employee may say that he would have
disclosed a mental disability that could be relevant to the
discipline, but did not do so because a fellow employee, the shop
steward, was present. That scenario could amount to a denial of a
fair investigation and a proper opportunity for the employee to be
heard, which could cause any discipline to be overturned. Under
most collective agreements, the employee decides whether or not to
have shop steward representation, and that choice must be respected
by the employer.
Although the employer must approach the employee's right to
shop steward representation with care, it should not allow a shop
steward to hijack an investigation. The employer is entitled to
have any relevant and proper questions answered by the employee. A
shop steward cannot provide answers on the employee's behalf,
and any employee who refuses to answer a proper question on the
advice of the shop steward does so at his or her own peril.
The option to have shop steward representation is a substantive
right of the employee. That right must be handled properly by the
employer throughout the disciplinary process.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).