The Wm. Scott Questions: How Arbitrators Decide Discipline

If you have ever sat in a discharge meeting and heard someone say “just cause,” they were probably reaching for Wm. Scott without naming it. The decision is not a statute. It is a 1976 British Columbia Labour Relations Board award that Canadian arbitrators still use when the question is discipline.

The case is Wm. Scott & Company Ltd. and the Canadian Food and Allied Workers Union, Local P-162. Paul Weiler chaired the Board. The fight was the discharge of a worker at a Coquitlam poultry plant. The Board set out how a typical discharge grievance should be analyzed. Search the award on CanLII under that name. Cite the award, not a blog post about the award.

The three questions

Weiler said arbitrators should ask three distinct questions — not one mushy “was this fair.”

• One. Has the employee given just and reasonable cause for some form of discipline?
• Two. If so, was the employer’s penalty — often discharge — an excessive response in all the circumstances?
• Three. If it was excessive, what alternative measure should be substituted as just and equitable?

Question one is the facts. Did the conduct happen. Was there a rule. Did the person know it. Was there a real investigation. If the employer cannot prove the conduct, you never get to the penalty. The grievance is won at step one. That is the onus: the company has to justify discipline and discharge.

Question two is the hard one. Even if something happened, was discharge — or a long suspension — too much. That is where progressive discipline lives. Length of service. Prior record. Whether it was a momentary flare-up or a pattern. Whether the employer treated other people the same way. Whether they tried a lesser penalty first.

Question three is the redress. If discharge was too much, what goes in its place: a warning, a suspension, a last chance. Reinstatement with or without back pay. Arbitrators can substitute. That is the point of the third question.

What it is not

Wm. Scott is a discipline test. It is not the test for every arbitration. A policy fight — like the TTC random testing award — is about whether a rule is a reasonable exercise of management rights, and sometimes about the Charter. That is a different analysis. Labour arbitration uses the test that matches the issue. Do not drag Scott into a contracting-out case and do not drag Irving into a late-for-work case.

Serious misconduct can still justify discharge with no prior warning. Scott does not abolish that. It forces the employer to prove the conduct, then justify the penalty, then live with a substitute if the penalty was theatre. That is why the questions belong in the grievance the week the letter lands — not the week before arbitration.