Canada: Experienced Unionized Employee’s Just Cause Dismissal Upheld Through Application Of "Culminating Incident" Doctrine

Last Updated: April 15 2014
Article by Kelsey Orth

A common question from employers, especially in the unionized context is: When do we have enough incidents of discipline on record for a repeat offender employee to terminate employment?  This question can be answered by examining the legal doctrine of the "culminating incident", which Arbitrator Paula Knopf did in her recent decision dismissing the grievance of a discharged employee with nine (9) years of service to the Employer (and many years in the industry) in 1367178 Ontario Inc. v. Healthcare, Office and Professional Employees Union, Local 2220.

Arbitrator Knopf sets out an explanation of the "culminating incident" doctrine in her decision:

"[The culminating incident doctrine] provides that when an employee engages in an act of misconduct for which some discipline may be imposed, an employer and an arbitrator may consider the whole record of discipline in determining what penalty is appropriate for the final act(s) of misconduct. Because of this, conduct that may not, on its own, warrant discharge can be the justification for termination when the entire record of employment is taken into consideration."

As Arbitrator Knopf then goes on to note, this doctrine depends on a proper application of progressive discipline by the Employer – in any instance of discipline, the employee is entitled to know what was expected of him/her, be provided the opportunity to redress any concerns and be made aware of consequences for subsequent/continued occurrences of misconduct.  In this case, it was determined that the Employer had properly implemented discipline on the offending employee: in that regard, the Grievor had 10 different instances of insubordinate and inappropriate behaviour for which she was disciplined, receiving everything from verbal warnings up to a 5-day suspension.

However, the incidents that led to the Grievor's discharge were, when viewed in isolation, relatively minor.  On the day in question, the Grievor, a Personal Care Provider ("PCP") at a long-term care residence was between three and five minutes late for "Report" at the beginning of her shift, and missed the information being conveyed by the Registered Practical Nurse ("RPN") on duty, who is the supervisor for the PCPs. The second incident involved a "rude" exchange with her supervisor, calling her "stupid".

In dismissing the grievance, Arbitrator Knopf held that the Grievor's consistent insubordination and demonstrated failure to respond to counseling and discipline justified the application of the "culminating incident" in the circumstances – notwithstanding that these incidents in particular were quite minor:

"...the Grievor's conduct on October 30th would not, on its own, attract major discipline. But it must be viewed in the context of the fact that this Grievor had received escalating disciplinary responses for the same kinds of misconduct. She had also received several counseling sessions and she had been moved around the facility in three prior attempts to find a supervisor and team who could work with her. Despite these efforts, the Grievor continued to speak disrespectfully to Registered staff and continued to ignore management's legitimate expectations with regard to Report."

Ultimately, Arbitrator Knopf agreed with the Employer that the Grievor's conduct and actions gave no confidence that she would act any differently than she had in the past, and that no amount of counseling or additional discipline would change or rehabilitate the Grievor.

This case is indicative of both the need for, and the ability of, employers to implement and enforce progressive discipline in managing problem employees.  Taking corrective measures properly will help achieve one of two ends: either the misconduct or behaviour is corrected, or the point of the culminating incident is ultimately reached and discharge is warranted.  The lawyers at CCPartners regularly advise our clients on when and what discipline is warranted in both unionized and non-unionized workplaces.

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.

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