However, a recent decision by a federal appeals court in Boston shows that such agreements, if not carefully drafted, could actually expose an employer to much greater risk and uncertainty than the normal grievance and arbitration process. The U.S. Court of Appeals for the First Circuit, which covers federal cases in Massachusetts, New Hampshire, Rhode Island, Maine and Puerto Rico, ruled on Grandpa v. Children`s Hospital Boston on November 18, 2015. The court held that since the faint hope agreement eliminated grievance and arbitration proceedings regarding subsequent termination of employment, a dismissed employee may (1) sue the employer in court for violation of the agreement and (2) wait six years to do so. [The employer] should not be allowed to use last-chance agreements instead of progressive discipline. “Employers should therefore consider the applicability of progressive discipline, particularly in the unionized context, where such a focus could itself be based on a collective agreement before automatically implementing a life cycle assessment. The basic facts in DeGrandis are simple. In 2007, the employer (a hospital) began firing an employee who was covered by a collective agreement. The union challenged the proposed dismissal. In the end, the hospital, the union and the worker resolved the grievance by entering into a memorandum of understanding – which was apparently intended to serve as a faint hope agreement – which provided as follows: However, in DeGrandis, the employer, union and employee agreed in the MEMORANDUM of Understanding that the complaint and arbitration procedure would not apply to a subsequent dismissal. dignity. The court therefore ruled that the employee did not have to exhaust this procedure before he could bring an action in federal court.
The tribunal held that in the absence of complaints and arbitration, the employee did not have to prove that the union had failed to perform its duty to fairly represent the employee, so the usual six-month time limit for bringing an action was not applicable. Instead, the court applied a six-year limitation period, which generally applies in Massachusetts to claims for breach of a written contract. deGrandis` employer now faces the prospect of arguing in federal court, perhaps before a jury, that there were reasons to fire the employee in 2008 for “failing to meet his generally applicable labour standards.” Instead of defending against a possible request for additional payment of several months, as is usually the case in arbitration, the employer may be subject to nearly ten years of liability for arrears if it loses the case. Neither the employer nor the union likely intended this outcome when they reached the last chance agreement. Last Chance Agreements (“LCAs”) can be useful tools for employers facing the difficult decision to end an employment relationship. LCAs are available in both unionized and non-unionized contexts, giving employers some flexibility to respond to misconduct that has continued despite previous disciplinary measures. Typically, as part of a “fixed choice” or “last chance agreement,” an employer agrees not to fire the employee in exchange for an employee`s consent, receive drug treatment, abstain from more alcohol or drug use, and avoid other workplace problems. Should a member sign? A faint hope agreement should only be used to save a member`s job when there are no other options. The first step is to investigate and analyze the management`s case using just cause`s seven tests. Normally, disputes regarding the dismissal of an employee covered by a collective agreement are resolved through the grievance and arbitration process of the agreement. An employee covered by a collective agreement cannot generally sue the employer directly for violation of that agreement unless the employee proves that the union has in any way breached its obligation to fairly represent the employee in complaints and arbitration proceedings.
Since claims against a union for breach of its duty of fair representation must be brought within six months of the event, courts generally require that a lawsuit brought by an employee for breach of a collective agreement with a complaint and arbitration procedure also be commenced within six months. If you give too many second chances, you`re doing no favors to yourself or your business. Set clear expectations about what needs to change, and then pursue them. If your employee is performing as expected, take the opportunity to congratulate them. If offensive behavior doesn`t change, consider discipline or let it go. Any other breach of the Employer`s generally applicable labour standards within 12 months of the date of this Agreement shall constitute grounds for immediate termination, and such termination on that basis shall not be subject to the claim and arbitration clause of the parties` collective agreement. What distinguishes last chance agreements from other disciplinary forms is the specific assertion that compliance with the terms of the agreement is necessary to obtain employment. Once the violation committed by the employee has been printed, specific guidelines can be cited and the specific measures that the employee must take to prevent future violations can also be clearly stated (the procedure here differs significantly from one company to another). In general, any future need for disciplinary action within a certain period of time will result in dismissal, so as a general rule, specific disciplinary measures are not included. To minimize the likelihood of additional arbitration and potential misunderstandings, this type of agreement is usually very short. This is often a general statement of consent from an employee that they have committed a serious violation of the policy. This is followed by their signature, in which they commit to making improvements in terms of policy compliance in the specified area.
The violation that specifically led to the drafting of the agreement is described in detail, but the general appearance of most forms is comparable to that of a written warning for most entry-level jobs. Instead of terminating the employment relationship of an employee who has tested positive for illegal substances or alcohol, that company (employer) offers the employee the last opportunity to commit to complying with all company policies and practices. In today`s job market, job security is at the forefront of everyone. The existence of opportunities such as a last chance deal is seen by some as a blessing, while others see it as a slightly abused reserve. The term refers to an agreement that is most often entered into between an employer and an employee represented by the union and that allows a person who has committed a serious violation of company policy to have a “last chance” to keep their job. Regulations vary considerably depending on the employer, the violation and various other circumstances. While faint hope agreements remain important tools in managing a unionized workforce, they must be carefully designed to avoid unintended outcomes in DeGrandis. It is unlikely that the elimination of complaints and arbitration procedures concerning future dismissals will be sufficient to provide the protection expected by the employer. Since the terms of collective agreements and the circumstances of disciplinary situations may be different, there is no one-size-fits-all approach.
It is therefore important to consult the Council on the preparation of last-chance agreements. Breach of a faint hope agreement is usually a ground for immediate termination, regardless of the union rules that might normally apply. Significant efforts will be made to formulate these agreements to avoid additional arbitration. The agreement takes the form of a written contract; An employee is expected to sign it and print their name, also recording the date. Your immediate supervisor and a staff representative – usually a human resources manager, depending on the size of the company – will attend the signing, also sign and print their names, and confirm the date the agreement was reached. If the employee`s underlying performance problem relates to drug or alcohol abuse, a life cycle assessment may be combined with a treatment and rehabilitation and/or testing requirement that is also useful in disability cases. A life cycle assessment can also be combined with anger management training or other training in case of behavioural problems or harassment. A last chance agreement takes place when an employee`s misconduct becomes unbearable. Both the union and management approve a last-chance agreement, as this contract can be discussed between the union, the employee and the employer. There will usually be a final party to one of these agreements, which states that the employee must focus on all aspects of the company`s policy and further affirms that the employer retains the right to dismiss the employee in the event of a policy violation, including those that are not specifically relevant to the previous violation.
Depending on the nature of the breach that has already occurred, there may be additional elements to that last part of the agreement, such as.B. certain actions that the employee should follow (or avoid), usually for the duration of a certain probationary period. The scenario is familiar to most employers who manage workers covered by a collective agreement: a union challenges the dismissal of a member of a bargaining unit and the parties face an uncertain outcome before an arbitrator […].