In Grievance Corner

The Collective Agreement that BUFA has negotiated with the Administration at Brock University is chocked full of rights (and, of course, responsibilities) for BUFA members. For example, there is undoubtedly no single more important right for BUFA’s members than the right to “just cause” protection in the event of termination of employment. Included among the provisions of Article 23 – Dismissal are the following:

23.01“Dismissal” means the termination of an appointment by the University without the consent of the member, before the end of the appointment period, and shall be only for just cause, and shall not be for reasons of program change or deletion. The non-renewal of a contractually limited appointment or a probationary appointment, a decision not to grant tenure or permanence, retirement, or a lay-off pursuant to this Agreement do not constitute dismissal.

23.02“Just cause” for dismissal shall be predicated upon misdeeds that are serious and that directly show a member is unfit, or unwilling (i.e. repeated demonstrated failure) to discharge his/her responsibilities as defined in Article 12 (Rights and Responsibilities of Members).

23.03 Medical inability to carry out reasonable duties shall not be grounds for dismissal but shall be treated separately from dismissal cases. Article 34.07 (b) through Article 34.07 (d) (Leaves) shall apply in the case of a person so afflicted.

To repeat, as set out above in Art. 23.01, “Dismissal” means the termination of an appointment by the University without the consent of the member, before the end of the appointment period, and shall be only for just cause, and shall not be for reasons of program change or deletion. The impact on employment for reasons of program change or deletion are covered elsewhere in the collective agreement; see, for example, Article 30, Redeployment due to Program Redundancy or Restructuring, and Article 29, Financial Exigency. Lay off is distinguished from dismissal, and the termination of employment of BUFA members who are retiring or on limited term or probationary employment contracts or who are medically unable to carry out reasonable duties is excluded from Article 23, but there are other provisions elsewhere in the Collective Agreement that protect these members.

For employees who do not have the protection of the “just cause” clause against termination of employment that unions including BUFA provide in their collective agreement provisions or, rarely, such protection that is located in some other statutes, these employees are subject to dismissal by their employer either with or without cause, and, if without cause, the only issue is the period of reasonable notice in the circumstances or pay in lieu of notice. These non-unionized employees will have to enforce their legal rights, if necessary, through the courts, often at considerable personal expense. At the end of the process, whatever the result, these employees, without the protection of a “just cause” clause will need to find other employment elsewhere.

The substantive right of BUFA members covered by the provisions of Art. 23 is that they are subject to dismissal “only for just cause” which is defined to require a basis in fact of “misdeeds that are serious and that directly show a member is unfit, or unwilling (i.e. repeated demonstrated failure) to discharge his/her responsibilities…” To be clear, by agreeing to these provisions in the Collective Agreement, BUFA has agreed with the Administration that members whose misdeeds are sufficiently serious or who are unfit or who have repeatedly demonstrated failure to discharge their responsibilities should not be protected from dismissal for cause. BUFA has agreed that the standard to be met for dismissal is the “just cause” standard, and BUFA has ensured that any culpable behavior that does not meet that high standard for dismissal is subject to progressive discipline to correct behavior before dismissal is required as a last resort and is subject to the internal and external procedural safeguards set out in the Collective Agreement.

The procedural rights of BUFA members covered by the provisions of Art. 23 include representation by BUFA at no additional expense to the member throughout a process that includes internal required pre-dismissal meetings, with clear timelines and deadlines, disclosure of evidence and reasons for the possible dismissal, and a requirement to attempt to resolve the matter informally. Even if no informal resolution is possible, there are additional procedural safeguards that must be followed before an employee can be dismissed including notice to the member and BUFA of the charges, in detail, against the member. BUFA has the right to contest the dismissal, and, if so, the resolution of a contested dismissal is through the arbitration process detailed in Article 10, that is, the final decision on whether or not the Employer’s decision to dismiss the member will be upheld will be made by an external, third party, neutral arbitrator, as part of a quasi-judicial decision making process and not by the Employer, with the additional protections that any suspension during the arbitration process will be with continuation of salary and benefits.

Dismissal from employment will only occur if the Arbitrator concludes on the basis of the evidence submitted in the arbitration hearing and subject to cross-examination of any witnesses, that the Employer had just cause to dismiss the member. Very importantly, the Arbitrator has the power to find that there was no basis for any discipline at all, or, if the Arbitrator concludes that there were some misdeeds by the member and that those misdeeds provided a basis for the Employer to take some disciplinary action but that those misdeeds did not warrant dismissal, then the arbitrator has the power to substitute a penalty lesser than discipline such as a suspension.

A Very Important Substantive Right, without the Means Necessary to Protect it, is NO RIGHT AT ALL!

In summary, one of the most important rights that BUFA members have under the provisions of the Collective Agreement is

  • the right to be dismissed from employment only for just cause, or, to put the same thing in another way
  • the right not to dismissed except for just cause

Of equal importance to this substantive right are the related procedural rights including

  • the right to a rigorous internal procedure that must be followed and, if necessary
  • the right to a rigorous external quasi-judicial arbitration hearing with the requirement that any evidence presented be subject to cross-examination and rules of procedure
  • the right to have any final decision made not by the Employer but by a neutral third party Arbitrator experienced in labour – management and arbitral jurisprudence
  • the right to have any discipline short of dismissal applied in a progressive way in order to correct, not punish, misdeeds
  • the right to be represented by BUFA through the whole process, and, if BUFA requires it, the additional assistance of BUFA’s legal counsel, all at no additional expense to the member
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A-Beginners-Guide-to-Dismissal-and-Just-Cause---BUFA