Public Service Alliance of Canada BC

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards …

Discipline - Mitigating Factors

Mitigating factors are considered in determining an appropriate disciplinary penalty. They may be taken into account by an employer at the time a disciplinary measure is being decided. Or, they may be raised by the union during representation.

In cases of discipline, representation is usually concerned with two areas. The first concerns whether or not the wrongdoing occurred as alleged, or whether or not the employer can prove that some measure of discipline is warranted. Sometimes, the union may concede that an employee’s misconduct constitutes grounds for some form of discipline. The second area relates to the penalty and its appropriateness in the circumstances.

There may be factors that warrant reducing a disciplinary penalty. These are called “mitigating factors”. The burden of proof in disciplinary cases rests with the employer but the responsibility for raising mitigating factors lies with the union. The burden of proving mitigating factors also rests with the union. However, the onus is on the employer to rebut or explain why such factors should not affect the penalty imposed.

Arbitrators weigh the presence, or absence, of mitigating factors in deciding whether to uphold, reduce or rescind a disciplinary sanction. If an arbitrator does not receive evidence from the union, s/he has no basis on which to substitute a lesser penalty. Though by no means exhaustive or comprehensive, the following will provide stewards with a basic list of mitigating factors.

Continue reading in the “Discipline - Mitigating Factors” handout (pdf), prepared by the PSAC education section.