“Think before you write,” warns top lawyer

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One top lawyer has spoken out about the importance of writing a well-drafted discipline or dismissal letter after a recent Ontario case demonstrated the potential upshots.

The case

The employer in the case operated a waste management company split over two sites, plant A and plant B, which handle hazardous and medical waste including pharmaceuticals.

One evening, a supervisor from Plant A – which had 24/7 operating hours – was informed of an alarm going off at Plant B which was closed at the time.

While investigating the alarm, the supervisor came across an employee from Plant A in the truck yard, at the back of an open trailer, next to containers of pharmaceutical waste – where he had no need to be.

Commencing an investigation, the supervisor viewed CCTV footage which showed two other employees from Plant A had also been there but had hidden or fled before he noticed them.

The employer determined that it had cause to terminate all three employees and issued termination letters noting that they were away from their work area and in possession of pharmaceutical waste containers without the knowledge of their supervisors.

The letters stated that they had either attempted to conceal their actions by hiding or leaving the premises but – most importantly – the letters did not allege what could not be proven – the theft or attempted theft of waste.

The terminations were subsequently upheld at arbitration and while the union argued that the employer had failed to establish what it was “really trying to prove” – the attempted theft of waste – the arbitrator didn’t accept the stance.

Instead, it was agreed that the employer had proven each of the grounds laid out in the termination letters.

What it means

“This case shows just how crucial it is to think before you write,” stresses leading employment lawyer Clifford Hart.

“Had the employer prepared ‘cookie cutter’ letters, or made broad unsupported allegations, the results at arbitration might have been very different,” he continued.

The Borden Ladner Gervais partner explained that the reason it’s so important to get discipline or dismissal letters right, is because each sanction can be questioned by way of grievance and every grievance can advance to arbitration.

“Since the employer must establish that it had just cause to impose the disciplinary sanction, the contents of the disciplinary communication, which sets the stage, have to be accurate if the employer is to be ultimately successful,” he warns.
 
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