Can I Be Disciplined for That?

Recently, I had a bad cold. After suffering (not in silence) for a few days, I finally rummaged around our medicine cabinet for something I could take. I found some cold medicine pills buried in the back and popped them at work. 

Thirty minutes later, I remembered why those pills were buried in the back. Cold pills, plus me, do not make a good combination! I get incredibly loopy and spacey. Thankfully, I had no meetings that day, as my normal filters for talking and writing were gone. I hid myself in my office and tried to avoid sending any important emails.  

This got me thinking about the excuses we make for the inappropriate things we may say or do at work. Would a “sorry, I took cold medication” or similar excuse hold up in arbitration if I had told off my boss or made someone feel uncomfortable with my unfiltered comments? 

Arbitrators, who act as “judges” in an arbitration case (like labour court) will look to see if an employee’s behaviour is culpable or nonculpable. 

A culpable action is something over which I had control. I am responsible for my actions and so then deserve blame. I can be disciplined for culpable action, but my employer has to follow the rules for proving just cause for the discipline.

Nonculpable behaviour is something that I do not have control over, so progressive discipline does not typically apply. But it must be proven that the behaviour is something I am truly not responsible for. There may be discussions around potential accommodation, human rights, and other appropriate resolutions.*

Over the years, arbitrators have identified various factors that should be considered to prove just cause and the appropriate level of discipline. Some of them are:

1. Cause—is there cause for discipline? Has the employer proven the misconduct?
2. Magnitude of the offense—was it minor or major? How damaging is the act to the employer-employee relationship? 
3. Mitigation—is there anything to decrease culpability or blameworthiness of the employee which would then lower the discipline? Examples could be unclear instructions, poor training, asked to do something too quickly, and being honest and upfront about any mistakes made.
4. History—what is the employee’s record? Have they had progressive discipline (particularly for the same kind of misconduct)?
5. Past practice—what has the employer done in the past?
6. Proper investigation—did the employer fairly and fully investigate the issue?
7. Length of service/seniority—an employee with high seniority and little discipline in their past may have a lesser discipline imposed than a low seniority employee with previous discipline.
8. Isolated incident—was it a spur of the moment incident or was it premeditated? Was there any provocation?
9. Equal treatment—what has the employer done with other employees who have done similar things? Rules must be enforced consistently.
10. Notice—had the employer put employees on notice about any applicable rules?  
11. Aggravating factors—these increase culpability or blameworthiness.
12. Documentation—an employer must document the action that led to discipline, as well as events leading up to it.
13. Management at fault—did management contribute to the issue (i.e. manager permitted the action in question in the past, etc.)?

But it’s not as easy as looking at a list to figure out whether you can be disciplined for a particular action and what the discipline should be. There’s no list of guaranteed “get out of jail free” cards. Each incident has to be investigated and weighted on its own merits according to the criteria above.

I do know for sure that I will steer clear of cold medicine in the future. The temporary relief is not worth the risks for me!

*Please remember each case is unique. These are general principles. Please consult with your representative on your specific situation.