It is well established that an Employer has the right to discipline an employee for culpable (blameworthy) conduct that is deemed contrary to the established practices and policies of the workplace. Often such conduct such as repeatedly being late for work, insubordination or carelessness can have an adverse affect on the employee's ability to perform their work to an acceptable level. Poor work performance can also be attributed to non-culpable (blameless) conduct such as an employees lack of natural skill, chronic illness or mental ability to perform specific tasks. However, disciplining an employee per se for circumstances beyond their control contradicts the generally accepted principle of using discipline as a corrective measure.

* It is difficult to apply the concept of fault to an employee who, through some physical or mental impairment, or simply through genuine inability or lack of competence, fails to attend the work place, or, once he or she is there, inadequately performs the work which is expected of him or her.

* Punishment will not result in improved attendance or performance, if the deficiency is due to circumstances beyond the employee's control. Nothing will be accomplished by penalizing the employee. That is a proposition that is also well established in the arbitral jurisprudence. There is an abundance of authority for the proposition that punishment is an inappropriate response to blameless absenteeism or inability to perform.

This does not preclude the Employer from taking some action and in fact when all is said and done termination of employment can be, and often is, the end result of continued poor work performance whether it is attributed to culpable or non-culpable behavior.

* It must be remembered that the question of whether conduct is culpable or non-culpable is an elusive question directed at drawing inferences as to an employee's state of mind on the basis of his conduct. In the final analysis it is the conduct and not the state of mind which determines the issue of continued employment. An employee who cannot perform is no better off than an employee who will not perform, if the rights of the employer are to be respected.

Notwithstanding the seemingly identical consequence there is a clear distinction in the manner an employer must proceed  when considering if the employee's poor work performance is due to culpable or non-culpable conduct. In either case arbitrators are of the opinion that the employer must still demonstrate just and reasonable cause.

* Thus whether the reason for the employer's action was, on the one hand, misconduct by the employee, or non-culpable cause such as redundancy, inability to perform the work due to sickness or injury, or lack of ability or qualifications on the other hand, the basic issue is the same: did the employer have just and reasonable cause for its action?

When reviewing the appropriateness of discipline due to allegations of culpable impropriety arbitrators have defined three distinct questions required of their consideration.

* First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer's decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?

In evaluating whether there is just cause for discipline arbitrators take into account the following factors:
 

1.		Does the evidence support on the "balance of probabilities" that the conduct charged was actually committed..
2.		Whether or not the offence was an isolated incident in the employment history of the grievor.
3.		Provocation.
4.		Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated.
5.		Evidence that the company's rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination.
6.		Circumstances negating intent, e.g. likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it.
7.		The seriousness of the offence in terms of company policy and company obligations.
8.		Any other circumstances which should be taken into consideration such as (a) failure of the grievor to apologize and settle the matter after being given an opportunity to do so; (b) failure of the employer to follow any mandatory procedural requirements when disciplining the employee; (c) failure of the company to permit the grievor to explain or deny the alleged offence.

In the event the arbitrator has found there to be culpable conduct, determination as to whether or not the employers response was too harsh will be based in part on the following criteria:
 

(i)		How serious is the immediate offence of the employee which precipitated the discharge (for example, the contrast between theft and absenteeism)?
(ii)		Was the employee's conduct premeditated, or repetitive; or instead, was it a momentary and emotional aberration, perhaps provoked by someone else (for example, in a fight between two employees)?
(iii)		Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?
(iv)		Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem?

The arbitrator may also choose to consider other mitigating factors such as any financial hardship on the employee, their age and prospect of getting employment elsewhere or any particular emotional strain caused by family problems that may have contributed to the employees recent behavior to name a few.

Finally, if an arbitrator feels it is appropriate to substitute the original discipline for one of their own making they will often refer to previous "like" cases for guidance.

In determining the merit of an employer's dismissal of an employee based on non-culpable poor work performance arbitrators are consistent in putting the employer to a strict test of the following criteria.
 

(a)		Has the employer identified in objective terms the nature of the work to be performed and the standard expected?
(b)		Has the employer established that the employee was aware of the standard?
(c)		Has the employer established that the work performance of the grievor was below that standard?
(d)		Did the employer provide supervisory direction to the employee to assist him in achieving the standard?
(e)		Did the employer take reasonable steps to move the employee into other work within the bargaining unit that was or might have been within his qualifications and confidence?
(f)		Did the employer bring home to the grievor that his performance was unsatisfactory and that dismissal might result from a continued failure or inability to meet the standard?
(g)		Did the employer afford the grievor proper opportunity to challenge its assessment of his work or file a grievance?
(h)		Does the evidence support the influence of a continuing inability on the part of the employee to meet the standard?

Perhaps the most contentious criteria to be met is one of establishing an objective standard. In some cases such as manufacturing where there is more control over the work environment acceptable standards can be determined by simply measuring the average output of employees. Service orientated workplaces present a different set of problems given there is nothing concrete being produced. Setting an objective standard for employees in sales can be particularly troublesome considering there are factors neither the employer nor employee have control over such as a downturn in the economy. In short, the issue of whether an objective standard has properly been identified by the employer can only be decided on a case by case basis. It must however meet the basic requirements of being reasonable, achievable, fair, non arbitrary and non discriminatory.

In cases where an employee has already shown competence and ability to perform the work arbitrators are reluctant to uphold dismissal based on non-culpable poor work performance.

* It is a formidable task for an employer to justify a dismissal for continuous poor work performance after more than four years of employment.

* It bears repeating that such grounds [lack of ability] must be clearly established where it is alleged that an employee who has been performing a job for a year and one-half is incompetent to perform it.

Two other points of note. There must be a "culminating incident" to justify dismissal for culpable poor work performance. In the case of non-culpable dismissal the employer need only show an "occasion to review" the employees performance.

Secondly, arbitrators generally do not view demotion as an acceptable form of discipline whereas with non-culpable poor work performance the employer is obliged to make a reasonable attempt to accommodate the employee in a less demanding or more appropriate job prior to dismissal of the employee.

N Sones, Business Agent CWA Local 30248

References

* Case references can be provided upon request
Canadian Labour Arbitration - Brown & Beatty
Collective Agreement Arbitration in Canada - Palmer & Palmer
Discharge and Discipline - Krashinsky and Sack
 
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Communications Workers of America, Local 30248
"The Peterborough Typographical Union"
"Chartered in 1902"

681 Romaine St
Peterborough, Ont. 
K9J 2E6
Tel: 705-749-0198 
Tel: 1-800-291-9072 (Ontario) 
Fax: 705-749-6840