Just Cause Checklist
The overwhelming majority of collective bargaining agreements contain a provision that requires Employers to have "just cause" to take disciplinary action. The following is a checklist of arguments that can be used to undermine the "Just Cause" for an Employer's disciplinary actions. The elements of a "just cause" argument are:
Discipline should be corrective, not punitive.
The Employer must have promulgated a clear and unambiguous rule or standard of conduct. (Some conduct, such as theft by a police officer, is so egregious that a written prohibition is unnecessary)
- Rules and regulations
- Policies and procedures manual
- Departmental orders
- Collective bargaining agreement
- State law
The Employer has the responsibility of communicating the rule to employees prior to its use.
The rule must be consistently enforced. Prior inconsistencies won't help unless the Employer knew about them.
There must be proof of a violation of the rule, to the point of wrongdoing.
- Burden of proof: Runs from "preponderance of the evidence," through "clear and convincing evidence," up to "beyond a reasonable doubt." (Although arbitrators very rarely adopt a standard other than "preponderance")
- If a violation is proved, did the employee know his actions were wrong?
The Employer should conduct a thorough and fair investigation into the alleged misconduct.
Discipline should be progressive. (Discipline should be meted out in increasingly larger doses, allowing the employee the opportunity to adapt his/her behavior to the required standard of conduct.)
Employees must be treated equitably. All employees who have engaged in similar conduct should be disciplined equally.
Mitigating circumstances, such as the introduction of actors in an attempt to excuse wrongdoing, like:
- The employee's good disciplinary record
- The employee's state of mind at the time of the alleged misconduct