Just Cause – What It Means for Disciplines
Every discipline grievance revolves around the issue of “just cause.” The company must prove that it had just cause to impose discipline. What is the deﬁnition of this rather vague concept?
One of the most widely cited explanations of just cause was written by arbitrator Carroll Daugherty.1 Although not every arbitrator subscribes to all of Mr. Daugherty’s seven rules, they are widely accepted as valid criteria. All grievance representatives should carefully study arbitrator Daugherty’s “Seven Questions” reproduced below.
A “no” answer to any one or more of the following questions normally signiﬁes that just and proper cause did not mean that the employer’s disciplinary decision contained one or more elements of arbitrary, capricious, unreasonable, or discriminatory action to such an extent that said decision constituted an abuse of managerial discretion warranting the arbitrator to substitute her/his judgment for that of the employer.
Did the Employer give to the employee forewarning or foreknowing of the possible or probable disciplinary consequences of the employee’s conduct?
- There must have been actual oral or written communication of the rules and penalties to the
- A ﬁnding of such communication does not in all cases require a “no” answer to Question 1. This is because certain offenses such as insubordination, coming to work under the inﬂuence of alcohol or drugs, drinking intoxicating beverages or taking drugs on the job, or theft of the property of the company or fellow employees are so serious that any employee in the industrial society may properly be expected to know already that such conduct is offensive and heavily punishable.
- Absent any contractual prohibition or restriction, the company had the right unilaterally to establish reasonable rules and give reasonable orders; and this need not have been negotiated with the
Was the company’s rule or managerial order reasonably related to the orderly, efﬁcient, and safe operation of the company’s business?
- If an employee believes that said rule or order is unreasonable, he/she must nevertheless obey same (in which case he/she may ﬁle a grievance there over) unless she/he sincerely feels that to obey the rule or order would seriously and immediately jeopardize her/his personal latter effect, the employee may properly be said to have had jurisdiction for her/ his
Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
- This is the employer’s “day in court” An employee has the right to know with reasonable precision the offense with which she/he is being charged and to defend her/his behavior.
- The company’s investigation must normally be made BEFORE its disciplinary decision is If the company fails to do so, its failure may not normally be excused on the ground that the employee will get her/his “day in court” through the grievance procedure after the exaction of discipline. By that time there has usually been too much hardening of positions.
- There may, of course, be circumstances under which management must react immediately to the employee’s In such cases the normally proper action is to suspend the employee pending investigation, with the understanding that (a) the ﬁnal disciplinary decision will be made after the investigation and (b) if the employee is found innocent after the investigation, she/he will be restored to her/his job with pay for lost time.
- The company’s investigation must include an inquiry into possible justiﬁcation for the alleged rule
Was the company’s investigation conducted fairly and objectively?
- At said investigation the management ofﬁcial may be both “prosecutor” and “judge,” but may not also be a witness against the
- It is essential for some higher, detached management ofﬁcial to assume and conscientiously perform the judicial role, giving the commonly accepted meaning to that term in her/his attitude and
- In some disputes between an employee and a management person there are no witnesses to an incident other than the two immediate In such cases it is particularly important that the management “judge” question the management participant rigorously and thoroughly, just as an actual third party would.
At the investigation did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?
- It is not required that the evidence be preponderant, conclusive or “beyond reasonable doubt.” But the evidence must be truly substantial and not ﬂimsy.
- The management judge should actively search out witnesses and evidence, not just passively take what participants or “volunteer” witnesses tell her/him.
Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?
- A “no” answer to this question requires a ﬁnding of discrimination and warrants negating or modifying the discipline
- If the company has been lax in enforcing its rules and orders and decides henceforth to apply them rigorously, the company may avoid a ﬁnding of discrimination by telling all employees beforehand of its intent to enforce hereafter all rules as
Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee in her/his service with the company?
- A trivial proven offense does not merit harsh discipline unless the employee has properly been found guilty of the same or other offense a number of times in the (There is no rule as to what number of previous offenses constitutes a “good,” “fair,” or a “bad” record. Reasonable judgment must be used.)
- An employee’s record of previous offenses may never be used to discover whether she/ he was guilty of the immediate or latest The only proper use of an employee’s past record is held to determine the severity of discipline once she/he has properly been found guilty of the immediate offense.
- Given the same proven offense for two or more employees, their respective records provide the only proper basis for “discriminating” among them in the administration of discipline for said Thus, if employee A’s record is signiﬁcantly better than those of employees B, C, and D, the company may properly give a lighter punishment than it gives the others for the same offense; and this does not constitute true discrimination.
The Just Cause Checklist:
If the answer to any of these questions is no, there was no just cause for disciplineWas the employee aware of the rule or policy that she/he is accused of violating?
- Was the company’s rule or the supervisor’s order reasonable?
- Did management conduct a fair and thorough investigation before imposing discipline?
- Did a manager who was not directly involved in the incident conduct an objective investigation?
- Does management have enough evidence to prove that the employee is guilty?
- Was there disparate treatment e. was the grievant treated more harshly than other guilty of the same offense?
- Does the punishment ﬁt the crime, or is it too severe in light of the seriousness of the infraction and the employee’s record?