Double Jeopardy Also Applies to Employee Discipline

The recent Ontario decision of Garreton v. Complete Innovations Inc.[1] from earlier this year.  While an interesting read for a number of employment reasons, it is a good reminder to employers that “double jeopardy” also applies to employee discipline.

The relevant facts in this case are simple.

Marcela Garreton had been employed by Complete Innovations Inc. as a trainer for approximately 2 years.  She purchased bagels for an internal training session that she was to conduct.  Another employee, who was not part of the training session, wanted to have one of the bagels.  Ms. Garreton told the employee to wait until the attendees had taken their food.  The employee did not listen and grabbed a bagel – at which point, Ms. Garreton grabbed the employee’s wrist.  The employee responded with “get the f— off”, took the bagel and left.

The employee reported Ms. Garreton to her employer, who investigated the bagel incident.  The employer concluded that Ms. Garreton had retaliated with physical violence and, as a result, imposed a 2-day unpaid disciplinary suspension on Ms. Garreton.

After returning from her suspension, Ms. Garreton’s employment was terminated for cause, in part, because of the bagel incident.  The other two incidents relied upon by the employer occurred more than one year before the bagel incident (one involved insubordination to a superior; the other a client complaint about her attitude) and Ms. Garreton received written warnings for those incidents.

Both the Small Claims Court trial judge and, on appeal, the Divisional Court judge 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 subsequently terminate her after she had served her suspension.  The termination was wrongful and Ms. Garreton was awarded a 5-month notice period.

This double jeopardy (aka double discipline) rule has been applied in other cases – albeit primarily by labour arbitrators – including:

• Natrel Inc. v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union 647[2]
• Saskatchewan v. Saskatchewan Government and General Employees’ Union[3]
• Thunder Bay Regional Health Sciences Centre v. Ontario Nurses’ Association[4]

Lesson for Employers

The take-away lesson here is an employee cannot be disciplined more than once for the same offence.  Similarly, as employer, you cannot revoke discipline already given and then apply a harsher level of discipline for the same offence.  Doing so still runs afoul of the rule against double jeopardy.

So, if you are unsure about what discipline to impose, take a reasonable amount of time.  There is no need to hastily decide.  Send the employee home – if necessary – on a paid investigative leave (note: not a suspension) while you decide what is the right punishment to fit the crime.  Make it clear to the employee, if you are doing this, that he is being sent home on a paid investigative leave and that this is not the discipline being imposed.  You are far off better to do this than regret the level of discipline imposed – whether too harsh or too light – and be stuck with the consequences of that level of discipline.