Amnesty Clauses are commonly found in collective agreements in Canada. The purpose of such clauses is to erase disciplinary measures from an employee's file after a given period, usually between six and twenty-four months. Therefore, normally employers cannot consider disciplinary measures that predate the amnesty period when determining the appropriate disciplinary measure to be imposed.
However, in an arbitration case rendered in Quebec (only available in French), arbitrator Denis Provençal confirmed that amnesty clauses do not apply to arbitration awards that impose a disciplinary measure. As such, relevant disciplinary measures imposed by an arbitrator must be considered by the employer when determining the appropriate sanction even if they predate the amnesty period.
JMC worked as an educator in a center for youth at risk. His employment was terminated in 2013 after he inappropriately intervened in a situation involving a youth residing at the center. At the time of the events, the youth had been placed in a secured room for lack of cooperation in the center's search for a lost object and was yelling and kicking the door of the room. When JMC arrived on the scene, he did not follow proper protocol. For example, he confronted and humiliated the youth by asking him to remove his clothes and by grabbing him by the arm and putting him on the ground when the youth resisted.
In determining the appropriate sanction, the employer took into consideration a number of factors, including the severity of the event, the lack of credibility of JMC during the investigation and a suspension which had been imposed by an arbitrator in 2011. In 2011, the arbitrator at the time had substituted the employer's initial decision to terminate the employee's employment for physically assaulting another youth with a six month suspension.
Following the termination of JMC's employment in 2013, the union filed two grievances: the first contested the employer's consideration of the 2011 suspension in its analysis despite the twelve month amnesty clause contained in the collective agreement and the second contested the termination of the employee's employment.
The arbitrator rejected both grievances. In doing so, he confirmed that arbitration awards are not subject to amnesty clauses contained in collective agreements.
The arbitrator was sensitive to the employer's argument that disregarding the 2011 award would have an impact on the youth's right to integrity and security which are protected by laws of public order and therefore are not subject to the content of the collective agreement. However, this was not the determining element of his analysis.
Rather, the arbitrator explained that arbitrators' awards are final, inalterable, public documents, available to all, that bind the parties and any employee concerned. The arbitrator pointed out that not only could the employer refer to the 2011 arbitration award but that it had to do so in determining the appropriate disciplinary measure to be imposed following JMC's inappropriate intervention. Therefore, he rejected the union's first grievance.
He then confirmed the employer's decision to terminate JMC's employment. In doing so, he recognized the gravity of the employee's action considering the context in which the events occurred and also took into account the six month suspension imposed in the 2011 arbitration award. He stated that such a suspension was a serious disciplinary measure and that the employee should have known that any recurrence of such behaviour would jeopardize his employment.
This arbitration case redefines the extent of amnesty clauses which are very common in collective agreements. It establishes that employers must take into account relevant arbitration awards in determining the appropriate disciplinary measure to be imposed on an employee.
By recognizing that amnesty clauses do not apply to arbitration awards, this may impact a unions' willingness to proceed to arbitration for disciplinary measures that are less than a termination of employment as a disciplinary measure confirmed, or even reduced, by an arbitrator would permanently mark an employee's file.
It will be interesting to observe what impact this case will have on the Canadian labour law landscape and we will continue to report on developments.