Arbitration Process

Arbitrators can decide how a case will be heard as long as both sides get a fair chance to present their case.

If the grievance is based on the employer disciplining or firing an employee, the employer has the onus. This means that the employer must show that some kind of discipline was justified and that the discipline imposed was appropriate.

In cases not involving discipline or termination the union has the onus to prove that the collective agreement was breached.

In both cases the onus is on a balance of probabilities. This means the party must convince the Arbitrator that their position is more likely than not to be the correct one.

The party that has the onus will go first. Evidence is presented by calling witnesses and/or 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, but only to clear up things that were brought up in the cross-examination. Once both parties have called all their witnesses and cross-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's common for there to be conflicting versions of what happened. It is up to the Arbitrator to determine the facts of the case. A number of things can be considered when determining credibility including:

• 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 – i.e. attempting to avoid saying anything about certain issues?
• Does the person have a reason to lie?