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Thursday, December 28, 2017

Craven, "Just Cause--Industrial Discipline at Arbitration in the 1940s"

Paul Craven has published "Just Cause--Industrial Discipline at Arbitration in the 1940s" in the Canadian Labour and Employment Law Journal.

The Journal does not provide an abstract, but Professor Craven has kindly provided the editor's summary:

The principal elements of just cause protection for unionized workers in
the context of industrial discipline can be summed up in what the author refers
to as the “four Rs”: reasons, reinstatement, equitable relief, and representation.
While the scope and meaning of just cause came to be fully developed in the
arbitral jurisprudence of the 1960s and 1970s, several of its core aspects are
of considerably older provenance. This paper throws light on a little-known
chapter in the development of the “common law of the shop” by reporting on the
results of primary research into mostly unreported arbitration awards in discipline cases, conducted under the auspices of the Ontario Department of Labour in the wartime and immediate post-war periods. 
Although they did not set out to create a systematic jurisprudence, the arbitrators in those early cases clearly anticipated the established model of corrective and industrial discipline: they gave effect to a requirement for reasons; reinstated employees found innocent of allegations of wrongdoing and awarded compensation; articulated a need for prior warnings and a culminating incident; “made the punishment fit the crime”by substituting lesser penalties and taking into account mitigating factors such as length of service; and afforded a measure of protection to union officials against reprisal while emphasizing their responsibility for securing compliance with grievance procedures. Ultimately, the author argues, the early arbitrators saw their role chiefly as the cultivation of workplace harmony and avoidance of work stoppages, seeking to reconcile industrial unionism with industrial peace.

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