Most collective bargaining agreements require that any discipline be based on just cause. Just cause has no precise definition but it requires both fairness and a provable justification for discipline and it has come to mean a higher standard than that of an at-will employment which allows for discharge for any reason that is not unlawful. Many arbitrators employ a six part test to determine whether or not just cause exists to support a discipline decision (some use a four or seven part test, but the factors are essentially the same). These six factors are: (1) was there a rule and was the employee aware of that rule; (2) is the rule reasonable; (3) is the rule enforced consistently and equitably; (4) was a thorough investigation completed; (5) was the severity of the discipline reasonably related to the infraction; and (6) was the discipline administered in a timely fashion.
Where a contract is silent as to the quantum of proof required to prove just cause arbitrators generally employ a preponderance of evidence standard. If a workplace infraction involves a crime arbitrators may require a higher standard of proof such as proof by clear and convincing evidence.
Employers should consult with legal counsel before undertaking discipline where an employee is protected by a just cause clause in a collective bargaining agreement. Knowing the six factor test and the quantum of proof required to support a disciplinary decision will help ensure a good result.
Furthermore, because the phrase “just cause” has come to mean a standard that is higher than that needed to discipline or discharge an at-will employee, employers should be very cautious to adopt a just cause standard in an employee handbook or elsewhere.
