The Ontario decision Garreton v. Complete Innovations Inc. is a good reminder that "double jeopardy" also applies to employee discipline.
The facts
Marcela Garreton had worked for Complete Innovations Inc. as a trainer for about 2 years. She bought bagels for an internal training session. Another employee, who wasn't attending, wanted a bagel. Ms. Garreton told him to wait until the attendees had taken their food. He ignored her and grabbed a bagel, she grabbed his wrist, and he swore at her, took the bagel and left.
The employee reported her. The employer investigated, concluded she had retaliated with physical violence, and imposed a 2-day unpaid disciplinary suspension.
When she returned from the suspension, she was terminated for cause, partly because of the bagel incident. The other two incidents the employer relied on had happened more than a year earlier (one involved insubordination to a superior, the other a client complaint about her attitude), and she had received written warnings for both.
The decision
The Small Claims Court trial judge and, on appeal, the Divisional Court judge both agreed that an employee can be disciplined only once for the same offence. Having already suspended Ms. Garreton for the bagel incident, the employer could not then terminate her for it after she served the suspension. The termination was wrongful, and she was awarded a 5-month notice period.
The rule against double jeopardy (or double discipline) has been applied in other cases, mostly by labour arbitrators, including:
- Natrel Inc. v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union 647
- Saskatchewan v. Saskatchewan Government and General Employees' Union
- Thunder Bay Regional Health Sciences Centre v. Ontario Nurses' Association
Lesson for employers
You cannot discipline an employee more than once for the same offence. Nor can you revoke discipline already given and replace it with harsher discipline for the same offence.
If you're unsure what discipline to impose, take a reasonable amount of time. If necessary, send the employee home on a paid investigative leave (not a suspension) while you decide. Make it clear to the employee that this is a paid investigative leave and not the discipline. That is far better than regretting discipline that was too harsh or too light and being stuck with it.