While the parties have the right to negotiate limits on what an arbitrator can consider when assessing discipline, each sunset clause must be analyzed, according to Arbitrator Glass, which excludes them from the analysis. In the case before him, the adjudicator concluded that the “disciplinary history” should be excluded outside the time limits, but that he had not been prevented from considering the claimant`s “employment or employment record”. In this case, the previous error survived the sunset clause because it relied on the applicant`s “total work record” and. Attitude as an employee” and whether he could learn from his mistakes. Although this was an incident for which the complainant was disciplined, the impact of this previous incident was not limited to discipline. The collective agreement between the parties contained a “sunset clause” that stated that after a period of 12 months, the employer would not consider a letter of complaint 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 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 serious error – not only once, but twice – despite the existence of a sunset clause prohibiting the review of disciplinary measures within a certain period of time.
First, only written complaint files are subject to the sunset clause. Records of more serious disciplinary measures, such as suspension, are not removed from the file. Non-disciplinary coaching files are also not removed from the file. As noted in the section, the sunset clause does not even apply to letters of reprimand if there is a subsequent disciplinary action within the 48-month period. Since history cannot be changed by collective agreements, workers who are in subsequent disciplinary hot water are expected to offer extenuating 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 effect of Metrolinx cases is not limited to situations involving sunset clauses, but can also be invoked in other contexts (e.g. B, the absence of compulsory trade union representation during disciplinary rules) in which the “doctrine of nullity ab initio” has traditionally been applied. This case demonstrates the importance of clarity in the drafting of collective agreement provisions, particularly with respect to sunset clauses that may prevent an employer from relying on previous cases of misconduct.
The tribunal also considered Molson`s subsequent arbitration treatment and the general finding that the violation of a sunset clause invalidates 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 occurred in Molson. It concluded that Vice-Chairs Jessett and Jebamoney should have considered all the relevant circumstances in determining whether Molsons had a restrictive effect, and that it was both unreasonable and wrong not to do so. While the wording of this case is sufficiently narrow to allow the arbitrator to resort to past misconduct, an employer who agrees with the general wording of the 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. Background: The Molson Divisional Court had reviewed the results of a full arbitration hearing in which an employee was dismissed for workplace misconduct. He had a similar disciplinary record for misconduct, but the forfeiture clause in the current collective agreement prevented the employer from considering this misconduct. It was clear that the employer`s investigator and the manager recommending dismissal “considered the employee`s disciplinary record without limiting the recording period they were considering.” In response to the union`s argument that it was impossible to know exactly what the employer would have done if it had acted in accordance with the sunset clause, the Court concluded that the Vice-Presidents were not limited to remedying what the employer had done. The purpose of a sunset clause is generally to allow Parliament to enact legislation when changes or government action are required relatively quickly, when the long-term effects of the law in question are difficult or impossible to foresee, or when the circumstances warrant such a legal structure. The union argued that if a violation of a sunset clause only led to a review of discipline based on reasonable factors, nothing would prevent employers from intentionally 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 deliberate practice and that the effects of an intentional infringement practice would be a circumstance that could be considered by an arbitrator in an appropriate case.
For the purposes of judicial review, the Divisional Court noted that in the Metrolinx decisions, the Molson decision was understood by CSB to mean that “the only issue left for the arbitrator to violate a sunset clause is the amount of compensation paid to the employee.” Many collective agreements colloquially contain so-called “sunset clauses” on disciplinary proceedings. The collective agreement between the Queen and qufa contains such a clause in section 20.4.4, which states that Vice President Abramsky noted in the Jebamoney case that Weir was aware of previous complaints related to Jebamoney, including two complaints about excessive use of force, which have now been excluded from his file. The Vice-President stated that “while information cannot be removed from a person`s head,” it cannot be trusted. It concluded that the sunset clause had been violated and followed the reasoning of Jessett and Molson to reinstate Jebamoney with full compensation and disciplinary measures. A good example of a law that justifies a sunset clause is the United States Patriot Act. The Act, which was intended to address relatively short-term security concerns following the events of September 11, 2001, included a sunset provision for December 31, 2005, when it was originally drafted. The arbitrator found that the sunset clause in Molson`s collective agreement was a list and not mandatory. The court concluded that the sunset clause was indeed mandatory and that “the defendant company did not have the right under the collective agreement to discipline or dismiss the applicant in circumstances where it attached importance or weight to his previous disciplinary record”. It noted that “in the circumstances of the case”, the company could not discipline or reject bereavement for the incident in question and referred the case back to the arbitrator, stressing that reinstatement with full compensation was the only remedy. On appeal, the Court of Appeal amended the decision so that the arbitrator determined the appropriate compensation in accordance with the Divisional Court`s decision. Once the sunset date is reached, the law mentioned in the clause will become invalid.
If the government wishes to extend the period during which the law in question will be in force, it may postpone the date of the sunset clause at any time before it is reached. The tribunal noted that, although some of the circumstances in Jessett and Jebamoney were addressed, the Vice-Chairs did treat the violation of the sunset clause as the only relevant circumstance. This set metrolinx boxes apart from molsons. So, taking sunset clauses with you is that they do not erase the discipline`s own history. They eliminate evidence of minor disciplinary action from an official perspective, so that subsequent managers do not tend to be biased against an employee who has corrected undesirable behavior. .