Discipline is specific action taken by the Employer based on an allegation that an employee has not performed the employee's duties at a standard that is considered acceptable, or has failed to carry out a proper instruction given by an administrative superior.
An allegation requiring disciplinary action can only be justified if the following conditions are determined to have existed:
- the tasks or functions or responsibilities that are expected of an employee have been made clear to the employee through specific instruction, or it could be reasonably expected that such tasks or functions or responsibilities would be specifically known to an employee on the basis of the employee's rank and current terms of appointment;
- through specific and proper instruction, or on the basis of the employee's rank and current terms of appointment, the employee must have had a reasonable opportunity to know and understand the standard of performance that is expected, and specifically, the standard of performance that is not acceptable;
- if the disciplinary action is to be taken on the basis of a cumulation of allegedly censurable events, it is required that, in the course of the cumulation of allegedly censurable events, the employee will have been properly informed that the employee's performance was not at an acceptable level;
- in the case of an alleged refusal to carry out an instruction, such instruction will have been provided to the employee in written form, unless circumstances precluded the opportunity for written instruction to be received by the employee.
Failure to carry out the instructions given by an administrative superior are not valid grounds for disciplinary action, if:
- the instruction is in conflict with the employee's right to engage in legitimate collective bargaining activity; or
- the instruction infringes upon the employee's right to academic freedom.
Discipline shall take the form of (i) reprimand, or (ii) dismissal, except that when an Arbitration Committee decides not to uphold a recommendation for dismissal, the Committee shall have the power, under Article 22.214.171.124, to substitute whatever lesser form of discipline it considers appropriate, aside from change in academic rank or tenure.
An employee may, at the President’s discretion, be temporarily relieved of duties at any stage in the discipline process. Unless, and until the Arbitration Committee recommends that the employee be dismissed and the Board acts upon such recommendation from the President, the employee shall retain the employee's appointment at full salary.
Reprimand shall be a written statement issued by the President, on the recommendation of the Dean, to an employee stating that the employee's activities have been such as to violate acceptable standards of performance of tasks, functions, or responsibilities appropriate to the employee's present rank and current terms of appointment, or that the employee has failed to carry out a proper instruction. The written statement shall include reasons for the disciplinary action, and a copy shall be sent to the Association.
In the year subsequent to a reprimand, the Employer may withhold a Career Development Increase from the employee who has been reprimanded.
A reprimand shall be added to the employee’s personal file in accordance with Article 12.3.8.
A grievance against a reprimand shall conform to the grievance procedure as set out in Article 27 of this Agreement.
Dismissal is the termination by the Board of the appointment of any employee as a consequence of disciplinary action. A decision not to renew a probationary appointment, or not to grant tenure status at the conclusion of a probationary period, does not constitute dismissal.
31.4 Grounds for Dismissal
An employee may not be dismissed except for good and sufficient cause.
The loss by an employee of privileges to engage in professional practice (including, in the case of College of Medicine staff, the loss of hospital privileges) as the result of an action by an outside body empowered to take such action, shall not in itself be a sufficient reason for dismissal from the University. However, the Arbitration Committee shall not be precluded from receiving into evidence the facts and circumstances that led to the loss of professional privileges as establishing in whole or in part good and sufficient cause.
Failure to perform for reasons of proven ill health will not be grounds for dismissal provided that:
- the employee makes every reasonable effort to rehabilitate herself or himself commensurate with the employee's physical and mental abilities. Utilization of the EAP shall be regarded as constituting a reasonable effort at rehabilitation; and
- the employee seeks and follows an active treatment program suitable for the illness or disability.
Nothing in this section will be construed as changing the terms and conditions of the Academic Long Term Disability Plan for employees, (Article 22.5), and in particular, with the provision for alternate employment after two years on the Academic Long Term Disability Plan.
31.5 Procedures for Dismissal
When the Dean of a College is convinced that grounds for dismissal of an employee do exist, the Dean shall give written notice of this to the President with a full statement of reasons.
If, after consultation with the Dean, the President considers the case warrants further action, the President shall forward to the employee concerned, and to the Association, copies of the Dean's recommendation and appoint a time to discuss the matter.
The President shall then hold discussions with the employee, together with the Dean and a representative of the Association, to consider all circumstances pertinent to the matter.
The President shall, within a reasonable time thereafter but not exceeding 30 days, notify the employee, in writing, either that the matter will not proceed further or that it is the President's intention to make a recommendation to the Board that the employee be dismissed. The notification to the employee shall include a full statement of the reasons for dismissal. In no case shall the effective date of dismissal be less than three months from the date of the President's notification.
If the Association in its own right or on behalf of an employee wishes to contest the President's recommendation, it shall so advise the President, in writing, within fourteen days of the receipt of the President's letter and request the establishment of an Arbitration Committee to hear and determine the matter. In default of such request, the Board may proceed to deal with the recommendation. The Association and the Arbitration Committee shall, in accordance with the provisions of Articles 10 and 12, have access to all information and documents in the possession of the Employer that may be relevant to the case.
The Arbitration Committee shall determine whether or not the grounds for the recommendation for dismissal are established and, if established, whether or not they constitute good and sufficient cause for dismissal, and shall determine also such other matters as the President and the Association, on behalf of the employee, may agree, in writing, to submit to the Arbitration Committee.
The Arbitration Committee shall consist of three persons, one to be nominated by the Employer, one to be nominated by the Association, and a third member, who shall be chair, selected from a panel of five candidates appointed for this purpose by joint agreement between the Employer and the Association. These individuals shall be persons of unquestioned integrity and independence from outside the University. Each party shall have ten days from the date of the formal written request for arbitration to name its member on the Arbitration Committee and the two parties shall have a further four days to agree upon a chair. If agreement cannot be reached upon the selection of a chair from the panel of names, the appointment shall be made from the panel by random selection.
The names of persons who constitute the Panel of Arbitration Chairs shall be appended to the Agreement.
The Arbitration Committee once chosen shall begin its proceedings as soon as possible.
The Arbitration Committee shall give not less than seven days' notice, in writing, of the time and place of its hearing of the dispute, to the Association, on behalf of the employee, and to the Employer.
At any hearing to consider the case for dismissal of an employee, the Arbitration Committee:
Shall establish its own rules of procedure and of evidence.
Shall rest the burden of proof for dismissal with the Employer.
Shall have the right to call, examine and cross-examine witnesses.
Shall grant to each party the right, either personally, or by agent or counsel, to adduce evidence, to call, examine and cross-examine witnesses and to address the Arbitration Committee.
Shall hold its meetings in camera unless the Association, on behalf of the employee and the Employer, by mutual consent, agree that the meetings shall be open to the public.
Shall cause the proceedings to be audio recorded, such record to be kept for Arbitration Committee purposes, and until all appeals are concluded.
Shall have the power to substitute a more appropriate disciplinary action.
Shall have the right to examine any documents which it considers relevant to the grievance in question.
All reasonable expenses incurred by the Arbitration Committee shall be paid by the Employer, but each party to the dispute shall be responsible for all costs of legal counsel and other agents employed by them in the prosecution or defence of the case.
The decision of the Arbitration Committee shall be by majority vote and shall be final and binding upon the Employer and employee. Should there not be a majority decision, the decision of the Chair shall prevail.
When the Arbitration Committee has reached its decision, it shall immediately notify, by registered mail, both the President and the Association, on behalf of the employee, of its decision. If the decision is that the employee stand dismissed for cause, then the President, upon authority of the Board, shall notify the employee by registered mail to the employee's home address of the effective date of dismissal, which in no case shall be earlier than the date on which the committee handed down its decision or the date specified in Article 31.5.4.