By Leslie Jermyn ( Executive Director, QUFA)
Many collective agreements contain what are colloquially known as “sunset clauses” on discipline proceedings. The Queen’s-QUFA Collective Agreement contains such a clause at Art. 20.4.4 which states that
Any record of a written reprimand shall be removed from a Member’s Official File after forty-eight (48) months from the date of the written reprimand, provided that no subsequent discipline has been imposed within that period.
Let’s parse this out given the remainder of the Discipline article.
Firstly, only records of written reprimand are subject to the sunset provision. Records of more serious discipline like suspension are not removed from the file. Records of non-disciplinary coaching are not removed from the file either. As the article states, if there is subsequent discipline within the 48-month period, the sunset provision does not apply even to letters of reprimand.
Secondly, Art. 20.1.2 states that
Discipline shall be progressive with the aim of being corrective; the appropriateness of any disciplinary measure rests on both the cause and any relevant prior imposition of discipline.
This is a fairly standard labour relations principle – that discipline should be applied proportionally and in measured steps to allow the employee to improve their performance or correct their behaviour. In the Queen’s-QUFA CA, the steps are: Written Reprimand, Suspension with pay, Suspension without pay, Termination. In practical terms, for non-serious disciplinary matters, the employer cannot jump to suspension or termination without having tried corrective measures like coaching and written reprimands. However, if an employee is negligent or in breach of the rules or standards, and there is already a reprimand in the file, the employer may be justified in escalating the discipline to suspension.
Thirdly, the requirement to take progressive steps is waived in the event of gross misconduct. Gross misconduct is willful behaviour that, for example, disregards the safety of others, defrauds the employer, is repeatedly and deliberately insubordinate, or constitutes misrepresentation or breach of trust with the employer. Gross misconduct can be a single act or a pattern of serious misconduct.
Finally, no matter what happens to a document outlining a disciplinary action, two things are true:
- The employer cannot rely on a prior discipline in aggravation of a current penalty if the prior event happened in the mists of time. This span of time cannot be quantified because it would depend on the circumstances. For example, if an employee were reprimanded for a pattern of lateness and then corrected their behaviour for some years (3, 5, 7), no matter whether there is or isn’t a sunset provision, the employer would be hard pressed to justify suspension with a further single incident of lateness. Progressive discipline dictates that they would be advised to return to coaching the employee. On the other hand, a serious and willful misconduct that attracted discipline in the past, may have a longer lifespan as aggravation simply because it was more serious in the first instance. An employee caught stealing who was suspended could be expected to suffer more seriously if caught again, even if it happens some years down the road. The reason is that this crosses into the territory of creating a pattern of serious misconduct.
- The sun may set on the presence of the letter of reprimand in the file but it never sets on history. The disciplinary events happened – there was a meeting between employer and employee to discuss a problem with the employee’s comportment; it ended with a letter in the file for four years. That is always true even if in Year 5, the letter has been destroyed. If asked in Year 10, “have you ever been disciplined or coached or advised about this behaviour by your employer?”, the correct answer will always be “yes” regardless of whether the employer can rely on the past discipline in aggravation of penalty and regardless of whether evidence of the past still constitutes part of the Official File record.
Given that history cannot be altered by collective agreements, employees who find themselves in subsequent disciplinary hot water will be expected to offer mitigating explanations for the emerging pattern. In other words, rather than ignore the past or assume no one knows it, the employee may be advised to raise it as part of their explanation for what is happening now.
So the takeaway on sunset clauses is that they do not expunge one’s history of discipline. They do remove from official view evidence of minor discipline so that subsequent managers are not disposed to bias against an employee who has corrected unwanted behaviours. The other takeaway is that whether or not prior discipline matters today depends on many factors including whether or not it was for willful misconduct, how long ago it happened, whether the current event constitutes a ‘pattern’, and what mitigating circumstances exist.
In the unfortunate circumstance you find yourself facing disciplinary proceedings, the best advice is to be open with your QUFA representative about any past events so that we can advise you on how to deal with these in the present moment.
Leslie Jermyn can be reached at email@example.com.