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
"[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
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
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
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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