All good union stewards know that the facts are the most important thing to have on your side in a grievance or investigation.
But when dealing with matters of discipline, arbitrators may also consider circumstances beyond the facts of the case. For example, an arbitrator will weigh mitigating factors when determining if the discipline being grieved was excessive or appropriate. Employers may also take mitigating factors into account during the disciplinary investigation process. In both cases, the earlier you can identify mitigating factors, the better.
But what are mitigating factors?
While the burden of proof rests with the employer in disciplinary cases, Union Representatives will often bring up other considerations as they present their case in arbitration, even if the facts are clear and the Grievor has admitted to doing wrong. These other considerations are called mitigating factors and include things such as the Grievor’s length of service, previous discipline-free record, and the impact the penalty will have on the worker. Mitigating factors like these can help contextualize what happened, which may reduce discipline.
As a union steward, it is important to know what these factors are. If a member approaches you after an incident, you need to be able to take notes on the facts as well as mitigating factors. This will help you and your Membership Services Officer in case discipline is imposed and a grievance is necessary.
One recent case that AUPE successfully arbitrated hit the mainstream media because of its political context. This case also illustrates how important mitigating factors can be in having discipline reduced or eliminated altogether.
In June 2020, Jeffery Nichols, an AUPE member working for Government of Alberta Municipal Affairs, was dismissed after getting into fight on Twitter with a government cabinet minister’s political staff. Nichols had a spotless employment record that spanned back to when he was a summer law student with the same employer seven years earlier.
An arbitration board reversed the dismissal the following year, ordering that Nichols only receive a written reprimand instead. Several mitigating factors were referenced in the arbitrators’ decision, including:
- Nichols’ previous good record;
- His long service;
- That the Twitter exchange was an isolated incident;
- That the conduct was spur-of-the-moment and not premeditated;
- That Nichols issued an unprompted public apology;
- The penalty imposed significant financial hardship on Nichols.
If you are approached by a member facing a disciplinary interview, you must tell the member how important it is to tell the truth. If the member is honest about what happened and immediately takes responsibility for their actions, this can be considered a strong mitigating factor in their favour. If you become aware of any other mitigating factors, take notes immediately and be sure to alert your Membership Services Officer.
Commonly cited mitigating factors
• length of service and disciplinary record
• isolated incident, lapse of judgement, response to provocation vs. planned, intentional misconduct
• state of mind at time of incident (domestic issues, emotional and mental health problems, alcohol and gambling addictions, physical pain or physical conditions, etc.)
• was the misconduct an honest mistake or misunderstanding?
• was there a lax atmosphere at the workplace where similar misconduct was condoned by the employer?
• was the employee honest and forthright? Did the employee admit wrongdoing and show remorse?
• rehabilitative potential
• will the penalty impose economic hardship? (Arbitrators have considered this, particularly when dealing with cases involving mature workers, women and minority groups who have had otherwise long and exemplary service records.)