Nondisciplinary Terminations and Demotions in Arbitration

Donald J. Petersen

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DOI: 10.2190/AA3P-56BA-39A7-G28K

Abstract

This article examines 131 published arbitration awards dealing with terminations and demotions for non-disciplinary reasons. Of significance to employers is the fact that if the action taken is truly premised on nondisciplinary reasons, it is relieved from shouldering both the burden of proof and establishing just cause. One particularly difficult issue—that of an employee's physical ability to perform his/her job, is of concern to employers and employees alike, not to mention the arbitrators who adjudicate these types of cases. Possible ADA violations further cloud the picture. Often, the line becomes blurred between non-disciplinary actions for alleged physical inability to perform, and disciplinary ones. This article also explores distinctions between non-disciplinary and disciplinary demotions and when each action may be appropriate.

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