List: functions of grievance and arbitration process (3)
- Provides a dispute settlement mechanism
- Ensures compliance with collective agreement
- Provides a forum for additional bargaining during the term of the collective agreement
List: benefits to grievance and arbitration process (3)
- Benefit to all: settlement of disputes without interruption of work
- Benefit to management: avenue for communication
- Benefit to union: pressure tactic, question management decisions, union solidarity
- Benefit to employees: opportunity to be heard
List: employer concerns regarding grievance process (s)
- mechanism to challenge management decisions
- could be used to harass or obstruct
Define: privileged communications
Communications that cannot be referred to as evidence in subsequent arbitration hearings
Define: without prejudice
Cannot be referred to in any subsequent proceedings
Define: arbitration
Adversarial process in which the parties present evidence through witnesses and documents, have an opportunity to cross-examine the other side’s witnesses, and present a final argument themselves.
Define: rights arbitration
Resolution of a dispute relating to the administration of a collective agreement. AKA grievance arbitration.
Define: interest arbitration
Determination of the terms of a collective agreement.
Define: agreed statement of facts
Matters that the parties have agreed upon.
Define: burden of proof
Who must prove the facts in dispute, who has the onus or job or proving the issue in dispute. Generally it is the party filing the grievance.
Define: argument in the alternative
A party making an argument it wishes the arbitrator to accept if it’s primary argument is not accepted.
Define: arbitrability
Issue whether an arbitrator has the authority to hear a dispute
Define: cost of arbitration
Most collective agreements provide that the parties will split the cost of the arbitrator or chair of the arbitration board regardless of who wins
Define: remedies
Arbitrators have authority to grant remedies for breaches of the collective agreement
Can you pursue a judicial review of an arbitrators decision?
Yes, except in BC.
List: grounds for discipline (10)
- Failure to attend
- Leaving work without permission
- Lateness
- Theft
- Falsification of employment records or documents
- Misconduct on the job
- Incompetence
- Insubordination
- Off-duty behaviour affecting business
- Breach of company rules
List: allowable possible discipline (4)
- Written warning
- Suspension
- Demotion
- Dismissal
List: non-allowable forms of discipline (3)
- Impose fines (unless collective agreement authorizes)
- Reduce seniority
- Discipline twice for the same misconduct
List: factors arbitrators consider when reviewing discipline imposed by the employer (9)
- Seriousness of the misconduct
- Length of service
- Previous record
- Provocation by management or other employees
- Whether misconduct was premeditated or committed on the spur of the moment
- Whether the penalty creates special economic hardship
- Uniformity of enforcement of rules
- Whether or not rules were brought to attention of employees
- Whether griever initially denied or admitted misconduct
- Other facts, such as failure to apologize
Define: last-chance agreement
An agreement providing employee will be conditionally retained or reinstated.
Advantages: employee avoids dismissal, motivation to rehabilitate, possibly valuable employee is retained, arbitration may be avoided
Define: culpable absenteeism
Missing work involving employee fault or misconduct
Define: innocent absenteeism
Absenteeism employee has no control over
List: conditions that must be met in order to terminate employees for innocent absenteeism (3)
- Past absence is significantly over bargaining unit average
- No likelihood of future improvement
- Duty to accommodate has been met
List: possible labour relations board orders to remedy a breach of Duty of Fair Representation (5)
- Direct union to take grievance to arbitration
- Provide employee with independent legal counsel at arbitration hearing
- Direct union to pay damages to employee
- Direct union to meet with employees
- Direct union to post a notice confirming it will refrain from future violations
