Know Your Rights
Caution! Administrative or Disciplinary Investigation?
by Pierrette Gosselin, Regional Representative, Québec Region
How do you represent a member who is subject to what the employer calls “an administrative inquiry” when all signs indicate that the “administrative investigation” is indeed “a disciplinary investigation”? How do you distinguish between an “administrative investigation” and a disciplinary investigation?
All collective agreements contain provisions to ensure fair treatment when an employee is subject to a disciplinary investigation. These provisions include the right to be accompanied and represented by a union representative, the right to a certain amount of prior notice about the meeting (which varies according to the specific agreements), and the right to be informed of the purpose of the meeting to allow appropriate preparation.
... don’t hesitate to contact your steward when you are called to participate in an “administrative investigation”. You may benefit from good advice and significant assistance.
In many departments, the employer can avoid the application of these provisions by invoking an “administrative inquiry” or “administrative investigation”. It is not uncommon for employees involved in these investigations to be suspended without pay for an indefinite period. Most of the time the steward is not notified, and the employee alone must face an improvised interrogation at which he or she is unprepared to be confronted. Taken by surprise, the employee’s spontaneous reaction may be to trivialize or deny the allegations. This may aggravate the situation.
In a case before the Public Service Staff Relations Board (PSSRB), the employee was eventually dismissed after suffering a suspension without pay for more than seven months before the final decision was made. The employee was suspended indefinitely without pay on September 5, 2006, and her employment was terminated for disciplinary cause effective April 10, 2007.
The employee challenged the suspension without pay, and the employer argued during the arbitration proceedings that the arbitrator had no jurisdiction to adjudicate the complaint because it was an “administrative investigation”. The adjudicator concluded that the suspension without pay pending the investigation was disciplinary, and that he therefore had jurisdiction over this grievance.
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The adjudicator upheld the dismissal, but determined that the employer had had sufficient information to decide to terminate the employee months before it actually rendered the decision. The adjudicator also concluded that the employer was not diligent in concluding its investigation expeditiously. The adjudicator ruled that the lengthy waiting period during which the employee was suspended without pay had caused substantial injury or “prejudice” to the employee and he ordered that the employer reimburse the employee all salary and benefits for a portion of the suspension period.
What should be done in cases where an employee is summoned to an administrative investigation and is denied the right to representation?
Should the employee refuse to cooperate with that investigation? The natural tendency of the employee is to cooperate with the investigation in good faith without being on the lookout for potential difficulties or the beginnings of a disciplinary process.
For this reason, it is important to consult your union steward and employment relations officer so that they can properly assess the situation and the facts as soon possible. This responsible action will force the employer to comply with the terms of the collective agreement. The fact that the employer decrees that it is only an “administrative investigation” does not make it so.
The specific facts of each situation must be examined in detail by qualified defenders of the employee. Timely interventions can be made at the outset to avoid mistakes and interminable delays on the road to justice.
There is a need to consolidate the provisions of the collective agreement in disciplinary matters by requiring there be a delay between the alleged commission of a crime and the imposition of disciplinary measures. This would substantially narrow down the duration and nature of the investigations.
Even if you are a professional and you are able to manage difficult situations due to your extensive education and experience, don’t hesitate to contact your steward when you are called to participate in an “administrative investigation”. You may benefit from good advice and significant assistance. For more information on the case cited in this article, please refer to Public Service Labour Relations Board Decision - 2011 PSLRB 127 (November 9, 2011): Baptiste v. Deputy Head (Correctional Service Canada).