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The Question

I’ve been the victim of false accusations at my workplace. The HR department recently conducted an “investigation” that concluded the allegations were true. They issued a warning letter. This was much to the surprise of the union and myself. CUPE has told me there’s nothing they can do as it has not resulted in a suspension or dismissal. What recourse do I have?

The First Answer

Kelsey Robertson, associate lawyer, Ukrainetz Workplace Law Group, Vernon, B.C.

If you disagree with the results of the investigation and the employer’s response, you can put your concerns in writing and provide it to HR with the request that your response be included in your staff file so it is on the record.

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A warning letter is a disciplinary response and can be grieved by your union, although the union has discretion to decide whether to pursue the grievance. If your union is refusing to proceed, you may appeal the union representative’s decision to a grievance appeal committee or the local executive.

Under some collective agreements, employee discipline will remain in the employee file for a defined period of time, such as 18 months, after which the record of discipline is removed, unless there has been further discipline for similar actions (this is known as a “sunset clause”). Check your collective agreement to see if this provision exists, so you know how long the warning letter will stay in your employee file.

A union cannot represent an employee in a manner that is arbitrary, discriminatory or in bad faith. If you believe your union is representing you in this manner, you must first use the union’s appeal process before you can file a complaint with the Labour Relations Board in your province (or to the Canada Labour Board if your employment is federally regulated) for what is known as a breach of the duty of fair representation.

Keep in mind this is a warning letter and if there is a sunset clause, it will not remain on your employee file for long. You will have to decide whether it is worth your time and energy to raise this matter with your union.

The Second Answer

Eleanor James, personal communications and employee-retention consultant, the James Thinkstitute, Toronto

Your situation sounds quite difficult. You state you’ve been wrongly accused, yet the HR department has found that there is merit in the accusations and has given you a warning. That would suggest that there are problems for you at your workplace. If you believe your human rights have been violated, there is recourse through either provincial or federal Human Rights legal support, although it’s a big step that can cause a lot of damage.

On the other hand, if you like your job and want more than anything to stay there, a warning is not the end of the world. You could pleasantly explain that although you don’t see eye to eye on the situation, it’s important to you to rebuild relationships at the workplace. Ask for help in that and you might be pleasantly surprised by the response you get. If that’s unpalatable to you or you meet with resistance, it could be time to move on. In that case, you could ask for a helpful letter of reference. More than anything, don’t lose your cool because that will only make things worse. I wish you all the best and hope this helps you find a workable solution.

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