The Reasonable Person Standard

The reasonable person standard in discipline cases

ONE AREA WHERE the reasonable person standard gets used a lot is in discipline cases. If we cannot get the charge dismissed, we try to negotiate a lesser penalty than the company wants to impose. How successful our argument is usually rests on our ability to get the company to adhere to what we believe is reasonable.

But the reasonable person standard gets cloudy when we are determining appropriate penalties. The person being disciplined has an entirely different attitude about the appropriateness of the penalty than the person dishing out the punishment. Regardless of how you or your grievant feels about the specific penalty, the arbitrator will most likely apply the reasonable person standard, and you may not be pleased with the result.

A recent conference of the Labor Arbitration Institute provides an excellent example. On one panel, five experienced labor arbitrators discussed an insubordination case. The penalty was a 3-day suspension, and the panel debated whether that was reasonable.

All five of the arbitrators upheld the 3-day suspension for the insubordination, despite the fact that every one of them said the penalty was harsher than what they would have imposed in the same situation.

Each arbitrator had a slightly different rationale for her or his ruling, but they all agreed on the basic premise. The penalty was harsh, but the arbitrator must have a very good reason to lower a penalty. It is not the job of the arbitrator to bend every company to his or her standard. It is enough to hold them to a standard that is reasonable in today’s workplace. If the penalty happens to fall at the outer limits of what might properly be called reasonable, that’s unfortunate for the grievant. A penalty will generally be lowered only when the arbitrator deems it to be clearly unreasonable in the given situation.

Unions often feel obliged to take what they consider to be unreasonable penalties to arbitration, even when they realize the facts point toward the guilt of the grievant. There’s nothing wrong with trying to get the penalty reduced, but if you do, keep in mind that the union’s burden becomes very heavy in such a situation. You need to convince the arbitrator not only that the penalty is harsh, but also that it is so harsh no reasonable person would have imposed it.

When you consider that some reasonable people spank their children while other reasonable people believe that to be a mild form of child abuse, or that some reasonable people support the death penalty while others oppose it, you begin to see that the term “reasonable discipline” covers a lot of territory.

The reasonable person standard is an attempt to provide an objective yardstick, but that yardstick can never be entirely objective. When you use this standard to make your case, you need to appeal to more than just “gut” feelings. Referring to how similar cases have been handled or using the results of opinion polls might help the company (or the arbitrator) see that your remedy is closer to what most people would consider appropriate.

And if you can’t find similar cases or opinion polls that support your position, you’ll need to consider the unpleasant possibility that maybe you are the one being unreasonable.