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Just Cause – Using the Seven Tests

Unfair and unjust discipline is something all employees have to deal with in a daily basis. The difference between the “At-will” employee and the union member, is the union member has the ability to have representation in the form of a business agent and shop steward represent them prior to any termination.  These entities, or individuals, have the ability to apply “Just Cause” in arguing whether an employee’s termination is justified or not.

When dealing with an arbitrator, Just Cause is the the standard in which decisions should be based in rendering a decision.  The following is a guide for shop stewards and the members in understanding how to effectively argue and issue by using all seven test for their arguments.

Effectively arguing Just Cause

  • Management must show  “just cause” when then are taking any action that leads to termination or any type of discipline.  The will act as the judge, jury and executioner, but in the end if in front of an arbitrator, winning the case depends on whether they follow the proper procedure, legally, in redering any type of discipline. 
  • “just cause”  means the employer must have a reason for imposing discipline.  In doing so, they must be justified in doing so. Skilled and fair management can be dealt with in finding a fair solution for various situations, but unfortunately, a overzealous individual looking to hang hides on the wall in order to achieve some type of promotion.  These individuals no amount of arguing will work. Laying down an effective argument is a must in order to show labor relations or an arbitrator the individuals handing out the termination did not reasonably arbitrate the case before them.

1. Reasonable Rule or Work Order. Is the rule or order reasonably related to the orderly, efficient, and safe operation of the business?

  • Is the rule or instruction straightforward and stated in language that is easy to understand?
  • Have you been consistent and unbiased in applying the rule or standard? Is it applied consistently throughout your department?
  • What is your department’s discipline record for violation of this rule or standard?

2. Notice. Did the employee receive adequate notice of the work rule or performance standard and the possible consequences of failure to comply?

  • Is the violated work rule or performance standard published? Is it up to date and relevant to the business needs of your unit?
  • How was the employee made aware of it (bulletin board, desk manual, staff meeting notes, prior oral or written communication, employee’s job description card, written standards)?
  • What evidence do you have that the employee is aware of it, and understands it (new employee orientation, signature on a routing slip)?
  • Has this issue been raised in performance appraisals or previous disciplinary actions? If so, how recently? Have you reviewed the employee’s personnel file?
  • Prior notice may not be necessary in cases of serious misconduct such as theft, insubordination, or job abandonment.

3. Sufficient Investigation. Did you conduct an investigation before making a decision about taking disciplinary action?

  • Why do you suspect that a work rule violation or performance discrepancy occurred?
  • Can the employee perform the task? Is there a history of successful performance, or could the employee need additional training?
  • Are there witnesses other than you? List others who may have knowledge of the issue through involvement or as witnesses (supervisors, employees, clients). Interview them and take notes.
  • Are there written records pertinent to the case in your department or elsewhere on campus? Should in-house records be secured under lock and key during the investigation?
  • Are there written processes or procedures which have a bearing on the case?
  • Is there equipment that should be examined by you or experts?
  • Do you need to call Internal Audit or the Campus Police? If you suspect misappropriation of University resources, you should immediately contact Internal Audit and your Employee Relations Consultant. Your own investigation will proceed, but other offices may provide information which becomes part of your evidence.

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4. Fair Investigation. Was your investigation fair and objective?

  • How long ago did the alleged infraction occur? (Unnecessary delays may send a message that you don’t consider the infraction to be serious.)
  • If you think you already know what happened, have you looked only for evidence to support your theory?
  • Should you conduct the investigation, or are you too close to what happened to be objective?
  • Should the employee remain on the work site during the investigation? (Do you fear sabotage, or is the employee a threat to others?)
  • Have you made every effort to reconcile conflicting statements or other conflicting evidence? Are you prepared to discard what you cannot validate?
  • Have you given the employee a chance to appear with a representative, to tell his side of the story and respond to the evidence you have gathered?

5. Proof. During your investigation, did you find proof of misconduct or of a performance discrepancy?

  • What conclusions are clearly supported by the evidence you gathered?
  • Remember that evidence must be truly substantial, not flimsy or slight, to form a basis for taking disciplinary action.

6. Equal Treatment. Have you dealt with your employees equally, without discrimination?

  • Are work rules applied consistently?
  • Are all employees held accountable for the performance standards established for their positions?
  • Have similarly situated employees (similar records and infractions) received the same discipline?
  • What is your department’s record for taking disciplinary action for this type of infraction? What is the campus’ record? (Explore this with your Employee Relations Consultant.)

7. Appropriate Discipline. How do you decide what’s appropriate?

  • Is the discipline you propose to take reasonably related to the seriousness of the problem? (Did the violation pose serious safety problems or create work flow disruptions for the department?)
  • Is it reasonably related to the employee’s record (length of service and overall performance)? Is this violation part of a pattern?
  • Do you have the authorization to take this action, or should you have it reviewed by the next level of management?
  • A minor infraction does not merit harsh discipline unless it is a repeat occurrence by the employee.
  • Given the same violation for two or more employees, their respective records of service provide the only basis for administering different disciplinary actions without being subject to a charge of discrimination.
  • What personnel program is the employee part of (AFSCME contract, PPSM)?

Questions, Comments, and Suggestions

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