Who Has to Justify Discipline and Discharge?

If you are a worker staring at a warning, a suspension, or a termination letter, the first fight is not “was this fair.” It is who has to prove it. In a Canadian union workplace that answer is not the same for every grievance.

The company has to justify discipline and discharge

A written warning that goes on the record is discipline. So is a suspension. So is a last-chance agreement. Discharge is the end of the job. In those grievances the employer has the onus. The company has to justify the discipline. The company has to justify the discharge.

You do not walk into the grievance as the person who must prove you are innocent. They issued the penalty. They have to prove they had just cause to do it. That is why the Wm. Scott questions still decide most Canadian discharge cases. Did the worker give just cause for some form of discipline. If so, was this penalty too much. If it was too much, what should be substituted.

Those questions sit on the employer’s case. If they cannot prove the conduct, they cannot justify the discipline. If they prove the conduct but cannot justify discharge, the penalty is cut down. The union still has work — the record, the comparators, the holes in the investigation — but the legal burden belongs to the company.

The union has to justify most other grievances

Overtime not paid. A posting skipped. Contracting out. A seniority claim. A schedule change you say breaks the agreement. There, the union is the moving party. You say the employer broke the contract. You have to justify the grievance: the language, the facts, the redress.

The company does not have to prove the overtime was legal before you prove it was not. “This is unfair” is not an article. If you cannot point to the book, you do not have a contract case yet.

Why workers mix this up

People hear “the union has to prove everything” and sit quiet in a discharge meeting. Or they hear “the company has to prove everything” and file a scheduling grievance with no dates and no article. Both mistakes cost workers.

• Discipline and discharge: make the employer put the rule, the investigation, the warning history, and the comparators on the table.
• Everything else: you are moving. Paper first. Time limits still run.

Serious misconduct can still justify discharge with no prior warning. Theft, violence, a deliberate safety breach — arbitrators have upheld that. The employer still has to prove what happened. They do not skip the facts because the accusation is ugly. That is progressive discipline in one sentence: match the penalty to the conduct, or lose the penalty.

What this is not

This is the usual Canadian arbitration rule. Your collective agreement can say something different. Some statutes reverse onus in specific places. This is education, not a guarantee about your hall or your hearing.

If the letter says discipline or discharge, talk to your steward the day it lands. The company has to justify it. Do not help them by guessing. If it is any other fight, bring the article and the dates — because then you have to justify the grievance.