Seven Tests For Just Cause
The requirement for an employer to show just cause when issuing discipline is usually found embedded in the “Managements Rights” section of a Labor Contract. Those two little words have probably become the most argued phrase in employment disputes.
The meaning of just cause is derived from the Constitutional Right to Due Process. U.S. Const. Amend. V. However, no such guarantee is afforded employees without an express written statement or state law. Most states remain “work?at?will” states, implying that quitting or being fired is at the will of the employee or employer, respectively. When the right to due process (i.e., just cause) has been bargained for, the process has been reduced to seven categories:
1. Adequate warning
2. Reasonableness
3. Completeness of investigation
4. Objectivity of investigation
5. Proof of infraction
6. Uniformity of the Rules application and
7. Reasonableness of discipline.
When any one of these requirements are not met, the discipline should be dismissed. Unlike the Legal System, however, precedent has only persuasive authority in the labor dispute context. Each contract and working environment is viewed to stand alone in the disciplinary arena.
With that in mind, we’ll look at category 1 now and other categories of just cause in future articles.
1. Adequate Warning
Did employees know the Rule existed? For example, the Employee may sell raffle tickets in the breakroom. A supervisor objects and discharges the employee for violation of a Nonsolicitation Policy.
Was the Policy clearly posted anywhere? If it was in an Employee Handbook, did the employee sign anything saying he read and understood the Handbook?
If the answer to these questions is “No,” how would the employee know about the Policy?
Even if the policy was posted or an employee signed a Handbook or other document, the nonprecedential nature of disciplinary dispute resolution will require an arbitrator or panel (depending on the nature of your particular grievance procedure) to agree that the employee had adequate warning of the discipline he faced, including expected degree of discipline.
On the other hand, if the Employer produces witnesses to show that the employee was adequately warned, then the employee’s case for just cause becomes much weaker.