So, taking sunset clauses with you is that they do not erase the discipline`s own history. They eliminate evidence of minor discipline from a formal perspective, so that subsequent managers are not subject to bias against an employee who has corrected undesirable behaviors. The other conclusion is that whether previous disciplinary measures are significant today depends on many factors, including whether or not it was intentional misconduct, how long it has been, whether the current event represents a “model, and what mitigating circumstances exist. Many collective agreements colloquially contain so-called “sunset clauses” on disciplinary proceedings. The Queen`s QUFA collective agreement contains such a clause in Art. 20.4.4, which states: The union argued that, from a political point of view, if a violation of a sunset clause only led to a review of discipline based on reasonable factors, nothing would prevent employers from deliberately violating their sunset clauses without any consequences. The court rejected this “lock-in” argument and concluded that the Jessett and Jebamoney cases did not suggest this type of intentional practice and that the effects of an intentional violation practice would be a circumstance that could be considered by an arbitrator in an appropriate case. In Ontario (Metrolinx – Go Transit) v. Amalgamated Transit Union, local In 1587, the Court found that the decisions of two different Vice-Chairs of the Grievance Settlement Board (GSB) in which Metrolinx was involved were both erroneous and inappropriate, as they were forced to apply the doctrine by a 1983 Divisional Court decision (BFCSD v. Molson`s Brewery (Ontario) Ltd. (“Molson`s”)). Both Vice-Presidents concluded that the only remedial order available to them once they had determined that management had breached a sunset clause was to declare the employers` disciplinary response null and void.

The decisions were set aside and the case was referred back to the GSB for further consideration of the appropriate sanction. The vice president regarded Weir as an honest witness. While she concluded that Weir had not really reviewed the existing copy of the workplace counselling letter, he had it “in mind” when he made the decision to dismiss: “As a decision-maker, Weir did not have the right under the collective agreement to review or weigh these issues because they had emerged from Jessett`s files.” The sunset clause was therefore violated. Being coerced by Molsons, she rejected the employer`s argument that she should “settle” the inappropriate review of expired files and consider appropriate redress in light of Jessett`s conduct. She returned to Jessett with full compensation and without discipline. However, the court accepted the employer`s arguments that Molson`s decision was made “only in accordance with the circumstances of this case” and that it does not prescribe an “automatic outcome once a sunset clause is violated.” It found that the arbitrator and the Molson tribunal had the advantage of a full arbitration hearing and the resulting finding of fact. First, only written complaint files are subject to the sunset clause. Records of more serious disciplinary measures, such as suspension, will not be removed from the file. Non-disciplinary coaching files are also not removed from the file. As noted in the article, the sunset clause does not even apply to letters of dismissal if there is a subsequent disciplinary action within the 48-month period. The effect of metrolinx cases is not limited to situations where expired clauses are affected, but can also be used in other contexts (e.g. B, a failure to ensure mandatory union representation during discipline) where the “doctrine of nullity abitio” has traditionally been applied.

Metrolinx`s judicial review was conducted in respect of two decisions stemming from preliminary applications filed with the GSB to determine whether the sunset clause in the collective agreement had been violated by the dismissal of two Metrolinx transit security guards. The sunset clause required the deletion of records of disciplinary action or adverse remarks after 18 months and the withdrawal of lawyer`s letters after 12 months, as long as the employee`s records remained free from disciplinary action during that period. The collective agreement between the parties contained a “sunset clause” that stipulated that after a period of 12 months, the employer would not consider a letter of reprimand in an employee`s file or a suspension of the employee`s file after a period of 18 months. However, this was subject to the condition that the employee not be disciplined for the same type of offence during the relevant period. The union argued that the sunset clause prevented the employer from taking into account the previous withdrawal of the wine. In a decision dated April 17, 2018, the Divisional Court asked the arbitrators to reject the so-called “null ab initio” doctrine, which in the past has often led to discipline imposed by management being declared null and void due to the violation of a sunset clause or other similar provisions. Learn more now in this FTR. The arbitrator noted that there was only one reason to discipline this case. In considering Wm.

Scott`s factors with respect to the appropriate level of discipline, the arbitrator referred to the impact of the “sunset” clause on the analysis. In Ontario (Metrolinx – Go Transit) v. Amalgamated Transit Union, Local 1587, the Court found that the decisions of two different Vice-Chairs of the Grievance Settlement Board (GSB) in which Metrolinx participated were both erroneous and inappropriate, since they were required by a 1983 decision of the Divisional Court (BFCSD v. Molson`s Brewery (Ontario) Ltd. (“Molsonson`s”) to: apply doctrine. Both Vice-Presidents had concluded that the only remedial decision available to them as a result of management`s decision was to treat the employers` disciplinary response as null and void. The decisions were set aside and the case was referred back to the GSB for further consideration of the relevant sanction. In response to the union`s argument that it was impossible to know exactly what the employer would have done if it had acted under the sunset clause, the tribunal concluded that the Vice-Chairs were not limited to setting out what the employer would have done. The tribunal also considered Molson`s subsequent arbitration and the general finding that the breach of a sunset clause upset the employer`s discipline from the outset.

The Court concluded that none of the cases cited by the union involved a full examination of the relevant circumstances, as had been the case for Molson. Referee Glass used the Scott World Cup test in his decision. This test examines whether any type of discipline was justified and, if so, whether the discipline imposed was appropriate. The adjudicator quickly determined that there was a valid reason to take disciplinary action in this matter. In considering Wm. Scott`s factors related to the appropriate level of discipline, the arbitrator discussed the effects of the “sunset clause” on the analysis. While the wording of this case is sufficiently narrow to allow the arbitrator to resort to past misconduct, an employer who accepts a general sunset clause runs the risk of having to maintain the employment of an employee who makes catastrophic errors with significant consequences, provided that sufficient time has elapsed between those errors. In a recent case by B.C, Mission Hill Winery v. Service Employees International Union Local 2, Branch 300 (Crozier Grievance), [2019] B.C.C.A.A.A. No. 130 (Glass), Arbitrator Nicholas Glass upheld the dismissal of an employee who had made a major error – not once, but twice – despite the existence of a sunset clause prohibiting the review of disciplinary measures within a certain period of time. Since history cannot be changed through collective bargaining, workers who find themselves in a subsequent disciplinary situation are expected to offer mitigating explanations for the emerging trend.

In other words, instead of ignoring the past or assuming that no one knows, the employee can be advised to address it as part of their explanation of what is happening now. The Court concluded that, although some of the circumstances in Jessett and Jebamoney had been resolved, the Vice-Presidents did consider the breach of the sunset clause to be the only relevant circumstance. This set metrolinx boxes apart from molsons. Therefore, although the adjudicator was not able, strictly speaking, to review the Claimant`s “disciplinary history”, he was able to investigate the Claimant`s ability to acknowledge the seriousness of his negligent misconduct and to respond to requests for improvement and the overall health of the employment relationship […].