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Focus on progressive discipline

I have been meaning for several weeks now to draw attention to the February 2011 edition of the Labour and Employment Law Perspective, the Canadian Bar Association National Labour and Employment Law Section Newsletter.

The focus of the excellant February issue was progressive discipline and it contained the following articles (with the summaries taken directly from the newsletter):

Compensation in lieu of reinstatement: A deviation from DeHavilland

By Andrew Zabrovsky

In an interesting supplementary decision following an award granting compensation in lieu of reinstatement, an Ontario arbitrator strongly repudiated several of the well accepted and long propagated concepts which have been applied to this remedy.

Three strikes, you're out: how many steps must an employer take in successfully implementing progressive discipline?

By Brad Proctor

It is a question employers commonly ask of their legal counsel: "How many warnings must be given before an employee can be terminated?" The often frustrating answer is, "It depends."

What is sufficient to warrant dismissal for incompetence without prior warning?

By Katrina Edgerton-McGhan and Christie Lee

The vast majority of cases regarding employee incompetence involve habitually underperforming employees subject to progressive discipline. The courts have held, however, that an employee can be dismissed for incompetence without warning.

At the intersection of discipline, human rights, and privacy: The strange case of Dr. Gabor Lukacs

By Andrew Langille

Progressive discipline can be a thorny issue fraught with pitfalls at the best of times. What happens when a case appears on your desk that doesn't fall into traditional categories, and is already embroiled in litigation in multiple forums?

Damages in lieu of reinstatement: Not a stealth remedy

By Andrea Frisby

Damages in lieu of reinstatement is a "rare and exceptional" discretionary remedy, available to arbitrators when the arbitrator concludes that an employer's decision to discharge a unionized employee was excessive, and the employment relationship between the parties is incapable of being restored.

Implementing discipline? Watch out for these complicating facts

By Kevin Robinson

I learned early in my career that when I receive a telephone call from an employer who just wants a "quick and dirty" opinion on the appropriate level of discipline to impose in a certain set of circumstances that there is no such thing as a good "quick and dirty" opinion.

Case Update: Some flexibility for employers in applying progressive discipline policies?

By Koml Kandola

A recent decision under Part III of the Canada Labour Code illustrates that in certain circumstances, an employer may impose a disciplinary response not expressly set out in its progressive discipline policy.