Employers Beware Accurate Disciplinary Notices are Essential

Issue: After failing to inform his employer of a coworker’s theft of company property, an employee was discharged. Additionally, he interfered with the company’s investigation. Under the terms of a union contract, the company provided him with a discharge notice stating that he was being terminated for theft, even though his employer knew that he had not stolen the property. Moreover, the company did not correct the discharge notice. Was the employee properly terminated?

Answer: No. An arbitrator ruled that the employee was improperly terminated for theft since the evidence demonstrated that he had not actually stolen the property. “Just cause” may have supported the employee’s discharge for interfering with the investigation, for insubordination, or for covering up the theft, but he could not be fired for a theft he himself did not commit.

Analysis:
The arbitrator noted that the disciplinary process requires an employer to correctly state the basis of its disciplinary action. Here, the discharge notice given the employee stated that he was being terminated for theft, even though the employer knew that he had not stolen the property. In addition, despite having time to do so, the company did not correct the discharge notice. However, the evidence did demonstrate cause for discipline, and therefore the employee was reinstated without back pay, benefits, or the accrual of seniority after the date of his discharge. Further, if within a year of the date of the award, any additional event that merited discipline would be grounds for termination.

Employer obligations:
Employers confronted with the necessity to impose discipline must correctly state the basis upon which the discipline is imposed. Failure to do so could invalidate the disciplinary action and result in additional time and expense to correct inaccuracies. Upon review of an employer’s actions, arbitrators frequently find that defective or otherwise inaccurate notices fail to advise the employee of the precise nature of the discipline, and will, therefore, reverse or limit the employer’s actions.

Cite: Nelson Tree Service, Inc. and IBEW, Local 309. 99-1 ARB 5575. Anne L. Draznin.

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