Union contracts usually include a reference to “just cause”. It is most often found in one of the following clauses: discipline and discharge; probationary period; personnel files; management rights; or in some other contract article. Even if “just cause” is not explicitly in a contract, arbitrators will usually apply the just cause standard anyway.
Just cause is the standard that management must adhere to when disciplining or discharging an employee. It means that in union settings, the employer must have a reason to act in disciplining an employee and the reason must be just and fair. In non-union workplaces, the employee is an at-will worker and can be disciplined or fired for whatever reason or no reason at all.
The concept of just cause is well established in labor law. There are specific tests that have been generally recognized as defining just cause. In brief, they are as follows.
1. Notice. Was the employee adequately warned of the consequences of his/her conduct?
This means that the employer must have clear rules of conduct at the workplace that are either written or oral, including the consequences for violating such rules. Some cases however may not warrant such a requirement because they are so egregious or commonly understood, such as; drinking on the job; patient abuse; theft; or insubordination.
2. Reasonable Rule or Order. Was the employer’s rule or order reasonably related to efficient and safe operations?
The employer’s rule must not be arbitrary, capricious or discriminatory and must be related to the employer’s stated goals and objectives.
3. Investigation. Did management investigate before administering the discipline?
The employer must investigate before imposing any discipline. The burden is on the employer to gather all of the facts, documents and witnesses. However, the employer may suspend an employee, with pay, pending investigation.
4. Fair Investigation. Was the investigation fair and objective?
The employer must conduct a fair and timely investigation. It must respect the employee’s rights to due process and to union representation. The investigation must be made objectively and without a rush to judgment.
5. Proof. Did the investigation produce substantial evidence or proof of guilt?
The investigation should produce substantial proof of a violation. The conclusions of guilt must be supported by the evidence.
6. Equal Treatment. Were the rules, orders, and penalties applied evenhandedly and without discrimination?
The rules must be applied consistently to all of the employees. The application cannot be discriminatory or selective. If other employees who commit the same offense are treated differently there may be evidence of discrimination or what is referred to as “disparate treatment”. Also, if enforcement of a rule has been lax in the past, management cannot suddenly reverse course without first warning employees of tighter enforcement of the rule.
7. Appropriate Discipline/Penalty. Was the penalty reasonably related to the seriousness of the offense and the past record?
The degree of discipline must be related to the seriousness of the violation. For instance, an employee generally cannot be terminated for an isolated instance of tardiness. Mitigating circumstances must also be taken into account as well as the employee’s past record. The concept of “progressive discipline” is recognized as an integral part of just cause. This means that the employer issues increasingly serious penalties for repeated violations (such as- verbal warning, written warning, suspension, termination). However, some serious violations in fact may require harsher discipline from the outset.