Seven Tests of Just Cause

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The University's personnel policies and collective bargaining agreements refer to disciplinary or corrective action as a consequence of an employee's misconduct or failure to perform satisfactorily. They do not provide a definition of just or proper cause for taking such action. Over the years, the opinions of arbitrators in discipline cases have established a set of guidelines or criteria to be applied to the facts of each case, commonly known as the Seven Tests of Just Cause.

1. Reasonable Rule or Work Order. Is the rule or order reasonably related to the orderly, efficient, and safe operation of the business?
   
   Is the rule or instruction straightforward and stated in language that is easy to understand?
   
   Have you been consistent and unbiased in applying the rule or standard? Is it applied consistently throughout your department?
   
   What is your department's discipline record for violation of this rule or standard?
   
   
2. Notice. Did the employee receive adequate notice of the work rule or performance standard and the possible consequences of failure to comply?
   
   Is the violated work rule or performance standard published? Is it up to date and relevant to the business needs of your unit?
   
   How was the employee made aware of it (bulletin board, desk manual, staff meeting notes, prior oral or written communication, employee's job description card, written standards)?
   
   What evidence do you have that the employee is aware of it, and understands it (new employee orientation, signature on a routing slip)?
   
   Has this issue been raised in performance appraisals or previous disciplinary actions? If so, how recently? Have you reviewed the employee's personnel file?
   
   Prior notice may not be necessary in cases of serious misconduct such as theft, insubordination, or job abandonment.
   
   
3. Sufficient Investigation. Did you conduct an investigation before making a decision about taking disciplinary action?
   
   Why do you suspect that a work rule violation or performance discrepancy occurred?
   
   Can the employee perform the task? Is there a history of successful performance, or could the employee need additional training?
   
   Are there witnesses other than you? List others who may have knowledge of the issue through involvement or as witnesses (supervisors, employees, clients). Interview them and take notes.
   
   Are there written records pertinent to the case in your department or elsewhere on campus? Should in-house records be secured under lock and key during the investigation?
   
   Are there written processes or procedures which have a bearing on the case?
   
   Is there equipment that should be examined by you or experts?
   
   Do you need to call Internal Audit or the Campus Police? If you suspect misappropriation of University resources, you should immediately contact Internal Audit and your Employee Relations Specialist. Your own investigation will proceed, but other offices may provide information which becomes part of your evidence.
   
   
4. Fair Investigation. Was your investigation fair and objective?
   
   How long ago did the alleged infraction occur? (Unnecessary delays may send a message that you don't consider the infraction to be serious.)
   
   If you think you already know what happened, have you looked only for evidence to support your theory?
   
   Should you conduct the investigation, or are you too close to what happened to be objective?
   
   Should the employee remain on the work site during the investigation? (Do you fear sabotage, or is the employee a threat to others?)
   
   Have you made every effort to reconcile conflicting statements or other conflicting evidence? Are you prepared to discard what you cannot validate?
   
   Have you given the employee a chance to appear with a representative, to tell his side of the story and respond to the evidence you have gathered?
   
   
5. Proof. During your investigation, did you find proof of misconduct or of a performance discrepancy?
   
   What conclusions are clearly supported by the evidence you gathered?
   
   Remember that evidence must be truly substantial, not flimsy or slight, to form a basis for taking disciplinary action.
   
   
6. Equal Treatment. Have you dealt with your employees equally, without discrimination?
   
   Are work rules applied consistently?
   
   Are all employees held accountable for the performance standards established for their positions?
   
   Have similarly situated employees (similar records and infractions) received the same discipline?
   
   What is your department's record for taking disciplinary action for this type of infraction? What is the campus' record? (Explore this with your Employee Relations Specialist.)
   
   
7. Appropriate Discipline. How do you decide what's appropriate?
   
   Is the discipline you propose to take reasonably related to the seriousness of the problem? (Did the violation pose serious safety problems or create work flow disruptions for the department?)
   
   Is it reasonably related to the employee's record (length of service and overall performance)? Is this violation part of a pattern?
   
   Do you have the authorization to take this action, or should you have it reviewed by the next level of management?
   
   A minor infraction does not merit harsh discipline unless it is a repeat occurrence by the employee.
   
   Given the same violation for two or more employees, their respective records of service provide the only basis for administering different disciplinary actions without being subject to a charge of discrimination.
   
   What personnel program is the employee part of (AFSCME contract, PPSM)?

Guidelines for Informational and Disciplinary Letters

7 Tests of Just Cause

Before issuing any discipline letters, review the "7 Tests of Just Cause" to determine if discipline is appropriate. Refer to the white pages of the Discipline section of the Management Guide (pages 1-3) for a detailed explanation of the "7 Tests".

Proof of Service

What is Proof of Service and When is it Used?

Proof of Service is a method of verifying that a document has been transmitted to an individual, union, or an individual's representative. A Proof of Service may be required under certain provisions of a collective bargaining agreement or the Personnel Policies for Staff Members (PPSM). Managers and supervisors should review the appropriate article or policy when taking an action.

Who Signs a Proof of Service?

• The signator on the Proof of Service cannot be a party to the subject matter of the document. In other words, the supervisor signing the discipline letter cannot sign the Proof of Service.
  
  
• The signator to the Proof of Service should not be a bargaining unit employee or a subordinate of the individual to whom the document is addressed.

Proof of Service by Personal Delivery

When delivery is to be made by personal presentation, the person who will actually deliver the document(s) should complete the "Proof of Service - PERSONAL DELIVERY" form and hand the document to the addressee. Some points to remember:

• The individual who signs the Proof of Service must actually hand the document to the addressee.
  
  
• A copy of the Proof of Service form should be attached to copies of the transmitted document that will be retained in the department.

Proof of Service by Mail Delivery

When delivery is by United States Mail, the person who is going to mail the document fills out the "Proof of Service - MAIL DELIVERY" form and mails it with the document. Some points to remember:

• The envelope should be addressed to the employee's last known address.
  
  
• The person signing the form should place the document(s) in the envelope, including a copy of the Proof of Service, seal it, affix sufficient US Postage to insure First Class delivery, and deposit the envelope in a United States Postal Service (USPS) deposit box before the last scheduled pickup on the date the Proof of Service is signed.
  
  
• A copy of the Proof of Service form should be attached to copies of the transmitted document that will be retained in the department.

Where Do I find the Proof of Service form?

Both types of proof of service are available as Word templates on your computer. (Select "File", then "New", then "General Templates".

Counseling Meetings/Letters of Information

• Employees do not have the right to representation during counseling meetings since these sessions do not lead to disciplinary action.
  
  
• Letters of information (also known as counseling memos or summaries of conversation) are not considered disciplinary nor are they grievable or arbitrable. These letters should summarize your conversations and include specific incidents and clear expectations. The tone of your counseling meeting and the letter of information should not sound like a reprimand. Again, the purpose is to provide coaching and expectations and to document your conversations.
  
  
• The following wording should not be included in letters of information, "Failure to meet these requirements will result in further disciplinary action, up to and including dismissal". This wording will make the letter disciplinary. You may take disciplinary action when other methods such as counseling, performance appraisal, or issuance of letters of information have not been successful. In cases of serious misconduct, you may choose to proceed straight to disciplinary action. However, you must consult with Judy Ross or Brenda Greenwood before proceeding.
  
  
• Unions and Employee Relations are not copied on letters of information.

Retention Period for Informational and Discipline Letters

Generally, records of corrective action shall be destroyed after two consecutive years during which there has been no further similar or related corrective action.

Counseling memoranda (Letters of Information) and/or written records of discussion, in and of themselves, are not discipline and are not required to be removed from the personnel file. However, many contracts state that upon the employee's written request, counseling memoranda and/or written records of discussion will be removed from the employee's personnel file(s) if there have been no other such memoranda relating to or disciplinary action on the same or similar issue(s) for a two-year period.

Refer to the appropriate contract or policy for more specific information.

Limited and Student (Casual-Restricted) Employees

We do not issue discipline letters to limited and student (casual-restricted) employees. These employees may be released at anytime at the discretion of the University without recourse to grievance and arbitration procedures. However, we encourage you to issue at least one letter of information, unless an immediate release is warranted due to serious misconduct. Supervisors may also opt to issue a second letter of information relating to the same or similar incident (i.e., attendance matters) before proceeding to a release. Consult with Judy Ross or Brenda Greenwood before proceeding with a release of a limited or student employee.

Additional Guidelines for Student (Casual/Restricted) Employees

All casual/restricted personnel (students) are covered by Personnel Policies for Staff Members (PPSM). By employing students, we recognize that we need to be flexible and help them to develop the right skills and a sense of personal responsibility. We use the same developmental philosophy towards students as used for career staff with respect to training and evaluations, however, corrective procedures for student staff are somewhat different. Student staff do not have the same rights in regards to the progressive discipline process used for career staff. Student staff should be given expectations at the earliest opportunity to improve their performance, attendance, or behavior. All informal corrective actions and releases should follow the Seven Tests of Just Cause as stated in the "Guide to Managing Human Resources," as well as the abbreviated guidelines below.

Informal discussions or Letter of Information (LOI)

1. Discuss the performance, attendance or behavior incident with the student.
   
   
2. Clarify what was inappropriate and how the incident should be handled in the future. Explore alternative solutions such as training or pairing with another employee.
   
   
3. Clearly explain future expectations.
   
   
4. At this point, you can choose to write a LOI or leave this as an informal discussion. If you opt for an informal discussion, it is recommended that you write a LOI the next time an incident occurs. If you write a LOI, please follow the sample LOI for Student (Casual/Restricted) Employees.
   
   
5. Document the incident and conversation.
   
   
6. All letters must be approved in advance by Judy Ross before they can be given to the employee.

Release from Appointment

1. Document the incident.
   
   
2. Discuss the incident with Judy Ross. A meeting with the employee may need to be scheduled before releasing the employee if the incident is related to misconduct.
   
   
3. Once a release has been decided, follow the sample Release from Appointment letter for Student (Casual/Restricted) Employees and include the Defined Contribution Plan (DCP) statement.
   
   
4. All letters must be approved in advance by Judy Ross before they can be given to the employee.

Release due to Job Abandonment

1. Attempt to make contact via telephone to ascertain reason for absence. If contact is made, discuss reasons for unapproved absence and next step with Judy Ross.
   
   
2. If no contact is made, prepare a Release due to Job Abandonment for Student (Casual/Restricted) Employees including the Defined Contribution Plan (DCP) statement.
   
   
3. All letters must be approved in advance by Judy Ross before they can be given to the employee.

Reminder Checklist for Writing Letters

	Job Status: Include status before recipient's title (i.e., Limited Sr. Custodian) on all letters.
	Witness Statements: Include names and titles of those involved (witnesses) and attach witness statements. A witness statement is a handwritten or typed statement including details of incident written in witness' own words (can be in own language), and is dated and signed by the witness.
	Employee Response: Include employee's response if there was a meeting or discussion with employee regarding incident or in follow-up letter to Intent to Dismiss if employee responded within response period.
	Previous Expectations: Provide how previous expectations were delivered orally and in writing and include brief description of reason for action (i.e., orally on [date] and in writing in a letter of information dated [date] regarding your excessive absenteeism and not arriving to work on time and in a letter of warning dated [date] regarding not following call-in procedures).
	Reiterate Expectations: Reiterate expectations that were provided in previous related letters for consistency. Add further expectations and/or cite related standards and work rules if needed.
	Attachments: Attach Proof of Service (if applicable) and copies of documents referenced in letter, i.e., previous documentation, written standards and/or work rules, witness statements, time reports, etc.
	Dates: Check for accuracy. For disciplinary letters, check the Discipline Letter Reference Chart (at the end of this chapter) to ensure that response periods and effective dates are in compliance with policy/contract guidelines. Refer to the appropriate Hours of Work contract article for notice periods for schedule changes. Check that dates of letter and proof of service are the same. Check with Judy Ross (2-2314) to ensure that effective dates of release/dismissal/termination are accurate.
	Copies and distribution of letters Sent with proof of service by mail: send recipient original letter, proof of service, and written statements with copies of previous and other supporting documentation. Make sure that proofs of service by mail are postmarked same day as date of letter. (placed in the United States mail with pick up time of 5:00 p.m. or earlier the day of issuance). Distributed by hand delivery: hand deliver to recipient original letter, proof of service (if applicable), and written statements with copies of previous and other supporting documentation. Letters that are copied to the union: hand deliver to Judy Ross, the day of issuance (same day as date of letter), already made copies including attachments for Brenda Greenwood, Employee Relations and union or employee's representative. For dismissal and release letters (in order to meet separation pay law): hand deliver to Judy Ross the day of issuance. Include copies for Brenda Greenwood, Employee Relations and union or employee's representative. A copy of the letter only should be hand delivered to Payroll Manager Cynthia Davis along with Separation Form, personal file, and employee's current timesheet if they complete a timesheet or if they use a time clock notify Cynthia that time to be paid through separation date has been entered into payroll system. Letters that are not copied to the union: place copies in departmental mail the day of issuance.

Sample Informational and Disciplinary Letters

	Send drafts of all letters to Judy Ross for review. Fax to 643-9839. Letters or drafts of letters should NOT be sent via e-mail.
	Use University letterhead.
	Refer to Reminder Checklist to assist you in completing the process.
	Refer to attached Discipline Letter Reference Chart (at the end of this chapter) to determine the policy or article #, appeal rights, and other information to include in the letters.
	We do not issue discipline letters to limited and student (casual-restricted) employees (see page 2 of this chapter for guidelines for letters to student employees).

Non-Disciplinary Letters		Page	Applies to:
	Schedule/Location Change	7	All Staff
	Notice of Investigatory Leave	8	All Staff
	Notice of Meeting	9	All Staff
	Letter of Information	10	Career/ Probationary/ Limited
	Letter of Information	11	Student
Disciplinary Letters for Career Employees (Non-Probationary)
	Letter of Warning	12	Career
	Suspension (5 days or less)	13	Career
	Intent to Suspend (6 days or more)	14	Career
	Suspension (6 days or more)	15	Career
Release/Dismissal Letter
	Release during Probationary Period	16	Probationary
	Intent to Dismiss	17	Career
	Intent to Dismiss, due to Job Abandonment	18	Career (except CUE and UPTE)
	Resignation, due to Job Abandonment	19	Career CUE and UPTE
	Dismissal	20	Career
	Letter of Dismissal	21	Limited
	Release from Appointment	22	Student
	Release due to Job Abandonment	23	Student

Discipline Letter Reference Chart

Note: Discipline letters are not issued to limited and student (casual restricted) employees (see page 2 for guidelines for letters to these employees).