Class 17 - Rights Arbitration

Question 1

Rights Arbitration

Answer 1

Dispute regarding alleged violation of legal terms and conditions of employment; can include policy grievances, group grievances, individual grievances (including disciplinary matters, usually claiming a violation of the “just cause” provision)

Legalistic Process

• Establish prima facie case
• Right to counsel
• Evidentiary burden
• Present evidence through documents, testimony & cross-examination of witnesses
• Judgment according to “the law” by impartial decision-maker, with reasons

Key difference from legal process

• May follow arbitral jurisprudence, but not required
• Final and binding decision which is rarely overturned (though judicial review is available in certain circumstances)

Question 2

The Task of the Arbitrator (in a disciplinary grievance)

Answer 2

1. To determine if the employee did anything to justify discipline (including discharge)
   > Did the employer have just cause for discipline?
2. To determine if the employee’s actions warranted the specific sanction imposed
   > Was the consequence proportionate to the misconduct, considering all the

Question 3

Remedies from Arbitrator (RAM)

Answer 3

Remedy the situation
Amend the sanction
Make the grievor whole

Question 4

Defining “Just Cause” in the Unionized Environment

Answer 4

An employer would have had just cause to discipline or discharge an employee if its actions were consistent with”

What a reasonable person, mindful of the habits and customs of industrial life, and standards of justice and fair dealing prevalent in the community, ought to have done under similar circumstances

Question 5

Defining “Just Cause” in the Unionized Environment

Answer 5

An employer would have had just cause to discipline or discharge an employee if its actions were consistent with”

What a reasonable person, mindful of the habits and customs of industrial life, and standards of justice and fair dealing prevalent in the community, ought to have done under similar circumstances

Question 6

Procedural Fairness - grievor’s rights

Answer 6

1. Know the case
2. Be heard
3. Be judged impartially
4. Reasons for decision

Question 7

Principles of Acceptable Discipline

“Good Mothers Chose Love Instead of Punishment Except for crimes of Demonic Proportions”

Answer 7

Employees must follow principle of “work now, grieve later” (except when
Mitigating circumstances considered
The main purpose is to correct, not to punish
Grounded in Legitimate business interests
appropriate reasons apply) Must be Individualized
Progressive (warnings, suspensions, termination)
Discharge only appropriate as a last resort or in Extreme circumstances
Deterrence in very limited circumstances Proportionality

Question 8

KVP Factors

3C’s And Not Ridiculous

Answer 8

If an employee is disciplined for violating a unilaterally imposed company rule (imposed by company, but not agreed to by union), that rule (and its adminstration) will be put to 6 tests by the Arbitrator:

It must be:

1. Clear and unequivocal
2. Consistent with the CA
3. Consistently enforced by company
4. Brought to Attention of employee before they acted upon it
5. Notified that a breach could result in discipline
6. Reasonable

Question 9

Mitigating Factors

Answer 9

• good record
• seniority (length of service)
• isolated incident
• provoked
• under severe stress
• premeditated or spur of the moment?
• seriousness
• evidence rules have not been uniformly enforced
• economic hardship
• prompt admission of truth
• takes responsibility
• sincere remorse
• other negative consequences