It has long been established in labour arbitration jurisprudence that, when presented with a grievance concerning discipline, the employer bears the onus of demonstrating just cause for that discipline. In order to determine whether there is just cause for termination or another disciplinary sanction, Arbitration Boards will consider several factors which include, not only the factual circumstances, but also any aggravating and mitigating factors.

Recently, an Arbitration Board in Nova Scotia failed to properly apply the onus when considering whether an employer had just cause to terminate a unionized employee. In arriving at its conclusion to dismiss the grievance, the Arbitration Board found as follows:

Having found that the Employer had grounds to discipline the Grievor there remains the question of whether the termination of the Grievor was the appropriate response.

The onus is on the Grievor to show mitigating factors that should be taken into account if the penalty of discharge is to be substituted with another penalty.

The employee’s union, the Public Service Alliance of Canada, was concerned about the latter paragraph which indicated that the Arbitration Board improperly shifted the onus to the employee to prove that termination was not the appropriate penalty. The union applied for judicial review of the Arbitration Board’s decision to the Supreme Court of Nova Scotia. In its decision, Public Service Alliance of Canada v Commissionaires Nova Scotia, 2014 NSSC 286, the Court agreed with the union, holding:

The Board did not engage in the necessary analysis of the grounds for discipline, whether the misconduct was sufficiently serious to warrant a penalty as severe as discharge. The Board did not articulate both mitigating and aggravating factors and weigh these against the seriousness of discharge to determine if the respondent had met its burden.

The Board seems to have assumed the seriousness of the conduct warranted the penalty of discharge and then looked to the appellant to show why anything but discharge should be considered.

This is not the appellant’s burden. The Board has failed to discuss the substitution of the lower penalty by reviewing any mitigating factors, except long service. The Board did not weigh other factors in evidence, such as a previously clear discipline record or evidence of good character. Had the Board performed this analysis they may well have still concluded that no lesser penalty was appropriate, particularly in light of the grievor’s outright denial and lack of remorse.

The burden of proof on the employer in discipline and discharge cases is important: the relevant information regarding why the employee was terminated usually resides almost exclusively in the hands of the employer. Moreover, in the unionized context, where employees may only be terminated with just cause, employers must be held to their onus of proving that just cause existed when the union challenges the basis for the termination.

While one might assume that the onus in discipline cases is well established, and Arbitration Boards will properly apply the burden of proof, the judgment of the Supreme Court of Nova Scotia in this case affirms that the courts are willing to intervene on judicial review to ensure that arbitrators do, in fact, approach disciplinary grievances in the appropriate fashion.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]