Arbitration

Arbitration is the final step in the grievance process. Before a grievance can be taken to arbitration, any process for resolving a grievance set out in the collective agreement must be used. The decision of the arbitrator is final and binding.

An arbitrator is an independent third party appointed to resolve the grievance after hearing from both sides. Arbitrators cannot have a financial interest in the dispute. They cannot have acted for either party as a lawyer or agent in the past year.

An arbitration can be done by a single arbitrator or an arbitration board.

If a single arbitrator is going to be used, the union or employer gives the other one or more names of people they would be willing to accept as an arbitrator. The other party can accept one of these people. If they do not want any of the named people, they provide their own list of names. From this list, the party who initially gave notice picks the arbitrator. If they do not, either party can ask the government to appoint an arbitrator.

Employers and unions can also decide to use an arbitration board of three arbitrators. In these cases, each side chooses one arbitrator and then they agree on the third one. If they cannot agree on the third one, either party can ask the government to choose.

Arbitrators have the power to deal with any dispute about a collective agreement. This includes:

• ruling on the meaning of any part of the agreement
• determining if the agreement applies
• deciding whether the agreement was breached

Arbitrators can also decide if they have the authority to deal with an issue.

Arbitrators have the same powers that courts have when deciding civil (non-criminal) cases. They can:

• require witnesses to testify and to bring documents or other relevant items to the hearing
• consider written evidence in the form of affidavits
• decide to accept evidence that would not otherwise be allowed in a court case
• go to the workplace to inspect anything in the workplace and to question anyone at the workplace
• use mediation or other means to encourage the parties to settle their dispute

The union and the employer each present evidence to support their case. They can also make arguments about their case to the arbitrator. Arbitrators can decide how a case will be heard as long as both sides get a fair chance to present their case.

The party alleging that the collective agreement was breached has to prove that it was. The exception to this is if the grievance is based on the employer disciplining or firing an employee. In this case, the employer has to prove it. The employer must show that the action they took was appropriate. In either case, the party who has the burden of proving their case must do so on a balance of probabilities. This means that they must convince the arbitrator that they are more likely than not to be correct.

The party that has the burden of proving the matter will go first. Evidence is presented by calling witnesses and submitting documents. Whoever calls the witness questions the witness first. This is called examination-in-chief. After the examination-in-chief, the other party may cross-examine the witness.

After the cross-examination, the party who called the witness can re-examine the witness. This can only be used to clear up things that were brought up in the cross-examination. Once both parties have called all their witnesses and examination has finished, each party makes closing arguments to the arbitrator.

When an arbitrator is asked to determine whether there was a breach of the collective agreement, it is common for there to be conflicting versions of what happened. It is up to the arbitrator to determine the facts of the case. An arbitrator can consider a number of things when determining credibility…

• Did the person contradict themselves by giving different accounts at different times?
• Are there details to back up what the person is saying?
• Is what the person says happened supported by the facts that are known about the situation?
• Is the person giving the evidence being evasive or attempting to avoid saying anything about certain issues?
• Does the person have a reason to lie?

When an arbitrator finds there has been a breach of the collective agreement or that an employer's discipline was unreasonable, there are a number of orders they can make.

One matter that arbitrators can deal with in workplace sexual harassment cases is deciding whether the employer’s discipline of the harasser was reasonable. If they find that the discipline was too harsh or inadequate, arbitrators can impose what they consider a just penalty. If the collective agreement sets out a penalty for certain conduct, the arbitrator cannot impose a different penalty.

Generally, arbitrators will consider:

• the seriousness of the conduct
• whether there was an isolated incident or multiple incidents
• whether it was something that was planned out
• the worker’s discipline record
• whether other types of less severe discipline had been tried
• the policies of the employer about these types of incidents

Arbitrators must consider the interests of all employees. They must consider whether safety could be an issue if an employee is returned to the workplace. The employer's policies and practices with respect to sexual harassment and their legal responsibilities under occupational health and safety laws must also be considered.

Although sexual assault is a very serious form of sexual misconduct in the workplace, sexual harassment does not need to involve physical touching for it to be considered serious. Written or verbal comments can also be considered serious misconduct, especially if they involve threats of any kind.

Arbitrators cannot rely on classifying sexual harassment as more or less serious based solely on whether some employment benefit depended on the victim going along with the conduct (quid pro quo harassment). This may be one factor, but it is not the only factor that determines how serious the conduct was.

As well as considering the seriousness of the misconduct, arbitrators will also consider the circumstances of the employee who has received the penalty. This includes:

• their disciplinary record
• how long they have been with the employer
• the impact the penalty will have on them
• how likely it is that they will engage in this type of conduct in the future
• whether they received prior warnings and lesser penalties to try and address the problem

If the person is honest about what happened and takes responsibility for their actions this can be considered a mitigating factor. On the other hand, if the person does do not take responsibility it can be an aggravating factor.

Because the safety of other employees must be considered, the arbitrator will consider if the employee can be trusted to not re-offend.

Whether the person apologized, when they apologized and what they did after the apology can be considered. If the person did not apologize until after they were caught, the arbitrator might not consider it to be a sincere apology. If the person has taken steps to change, such as attending counselling, their apology may be given more consideration. If the person does not testify at the hearing and apologize under oath, the arbitrator could consider this to be a reason to impose a harsher penalty.

A court can review the arbitrator’s decision based on whether it was reasonable. The court considers how the decision was arrived at as well as the outcome. Both must be reasonable. The decision-making process must be justified, transparent, and intelligible. The outcome must fall within a range of legally acceptable outcomes based on the facts of the case.