What Is Substantial Evidence?

By L. Spriggs

Your employer can't discipline you for violating a rule or standard if they don't have substantial and credible evidence to justify the discipline. 
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In his book titled Just Cause: A Union Guide to Winning Discipline Cases, Robert M. Schwartz recounts an interesting case where "an employee...called in sick with an intestinal disorder. Learning that she traveled to an out-of-state casino, the company fired her for dishonesty." In this case, the employee actually admitted to taking the trip but claimed to have been sick the entire time. Since the company didn't have any evidence that she could have worked, the arbitrator ruled in her favor and ordered that she be reinstated. Apparently, union members can go to the casino or a Cardinal's game when they call in sick as long as they actually look sick in all of the photos they post on social media...
But seriously, don't do that.

Generally, arbitrators rely on predetermined standards of evidence when evaluating grievances under the substantial evidence standard. These standards are not as robust as legal standards of evidence, but they still help to protect union members from being suspended or dismissed for unjust reasons. Furthermore, evidence that employers present, whether direct evidence, circumstantial evidence, or hearsay, can often be successfully disputed by a union depending on the circumstances of the situation. ​

"Your employer can't discipline you for violating a rule or standard if they don't have substantial and credible evidence to justify the discipline."​

Imagine, just imagine, a student accuses a teacher of grabbing them in the hallway and the parents call threatening to get lawyers involved, so the administration decides to investigate and they determine the evidence to be significant enough to discipline the teacher. However, the teacher claims she was reaching for a pass that she had asked the student to show her. Now, let's also imagine, just imagine, that upon closer examination of the evidence, the camera footage capturing the incident is unclear and could be interpreted as footage of the teacher simply reaching toward the student instead of grabbing them. On top of that, the eyewitness accounts from another union member, as well as two other students, contradict the student's own claims. 
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In such a case, if the administration still moved forward with suspension or dismissal and the case eventually went to arbitration, the evidence presented by the administration would not meet the standard of substantial evidence.