While a certain disgraced radio host may be suing his former employer for breach of confidence, the law is clear that employees governed by a collective agreement cannot sue for wrongful dismissal, but must rather seek recourse through the collective bargaining regime. This excerpt from the CED Labour Law (Ontario) title covers the grievance procedure and settlement by arbitration.
Labour Law – Ontario
BY: Juliet S. Robin
II.8: Grievance and Arbitration
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II.8(a): Grievance
See Canadian Abridgment: LAB.I.8.e.i Labour and employment law | Labour law | Labour arbitrations | Practice and procedure | Compliance with grievance procedure
The grievance procedure is not set out in the legislation, but rather is governed by the collective agreement itself, where the parties have negotiated such terms as the procedure for filing and settling grievances, parties to the grievance procedure and time limits. If the union and employer are unable to settle a grievance, the matter may be referred to arbitration.1
II.8(b)(i): Arbitration - General
See Canadian Abridgment: LAB.I.8.b.i.A Labour and employment law | Labour law | Labour arbitrations | Jurisdiction of arbitration board | Source | Collective agreement
Every collective agreement must provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.1
II.8(b)(ii): Arbitration Board
See Canadian Abridgment: LAB.I.8.a Labour and employment law | Labour law | Labour arbitrations | Composition of arbitration board
If there is a failure to appoint an arbitrator or to constitute a board of arbitration under a collective agreement, the Minister, upon the request of either party, may appoint the arbitrator or make such appointments as are necessary to constitute the board of arbitration, as the case may be, and any person so appointed by the Minister is deemed to have been appointed in accordance with the collective agreement.1
The minister may establish a list of approved arbitrators.2
II.8(b)(iii): Single Arbitrator
See Canadian Abridgment: LAB.I.8.a Labour and employment law | Labour law | Labour arbitrations | Composition of arbitration board
Despite the arbitration provision in a collective agreement or deemed to be included by virtue of the legislation, a party to a collective agreement may request the Minister to appoint a single arbitrator and to refer to the arbitrator any difference between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.1
A party's request for a single arbitrator may be made in writing either after the grievance procedure has been exhausted or after 30 days have elapsed from the time the grievance was first brought to the attention of the other party, whichever occurs first. No request may be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration.2
Where the difference between the parties relates to the discharge from or termination of employment, a party's request for a single arbitrator must be made in writing either after the grievance procedure has been exhausted or after 14 days have elapsed from the time the grievance was first brought to the attention of the other party, whichever occurs first. No request may be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration.3
The Minister must appoint a single arbitrator where requested, and the arbitrator has exclusive jurisdiction to hear and determine the matter referred to him or her, including any question as to whether the request was timely.4
II.8(b)(iv): Settlement Officer
See Canadian Abridgment: LAB.I.8.d.xiii Labour and employment law | Labour law | Labour arbitrations | Limits to arbitrability | Settlement of grievance
On the request of either party, the Minister may appoint a settlement officer to endeavour to effect a settlement before the arbitrator or arbitration board begins to hear the arbitration. However, no appointment may be made if the other party objects.1 The Minister may also appoint a settlement officer to confer with the parties and endeavour to effect a settlement prior to the hearing by a single arbitrator.2
II.8(b)(v) Time for Decision
See Canadian Abridgment: LAB.I.8.g.i Labour and employment law | Labour law | Labour arbitrations | Arbitration award | Making of award
A single arbitrator appointed under the legislation must commence to hear the matter within 21 days after the receipt of the request by the Minister.1
An arbitrator must give a decision within 30 days and an arbitration board must give a decision within 60 days after hearings on the matter submitted to arbitration are concluded.2
The time for giving a decision may be extended with the consent of the parties to the arbitration or in the discretion of the arbitrator or arbitration board so long as the reasons for extending the time are stated in the decision.3
The time limits do not apply if the arbitrator or arbitration board gives an oral decision. If an oral decision is given, (a) it must be given promptly after hearings on the matter are concluded, (b) upon the request of either party, a written decision without reasons must be given promptly, and (c) written reasons for the decision must be provided within a reasonable time upon the request of either party.4
If the arbitrator or arbitration board does not give a decision or provide written reasons within the time limits prescribed, the Minister may make such orders as he or she considers necessary to ensure that the decision or reasons are given without undue delay, and may make such orders as he or she considers appropriate respecting the remuneration and expenses of the arbitrator or arbitration board.5
In the case of a single arbitrator, upon the agreement of the parties, the arbitrator shall deliver an oral decision forthwith or as soon as practicable without giving written reasons.6
II.8(b)(vi) Duties and Powers
See Canadian Abridgment: LAB.I.8.b.ii.A Labour and employment law | Labour law | Labour arbitrations | Jurisdiction of arbitration board | Scope | Powers of board; LAB.I.8.e Labour and employment law | Labour law | Labour arbitrations | Practice and procedure
An arbitrator or the chair of an arbitration board has the following powers:1 (a) to require any party to furnish particulars before or during a hearing;2 (b) to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing;3 (c) to fix dates for the commencement and continuation of hearings;4 (d) to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases;5 (e) to administer oaths and affirmations; (f) to mediate the differences between the parties at any stage in the proceedings with the consent of the parties if unsuccessful, the arbitrator or arbitration board retains the power to determine the difference by arbitration;6 and (g) to enforce the written settlement of a grievance.7 The arbitrator does not, however, have the authority to alter the issues in the grievance so as to deal with issues which are substantively different from those set out in the original grievance.8
An arbitrator or arbitration board has the following powers:9 (a) to accept the oral or written evidence as he, she or it considers proper, whether admissible in a court of law or not;10 (b) to enter any premises where work is being done or has been done by the employees or in which the employer carries on business or where anything is taking or has taken place concerning any of the differences submitted, and to inspect or view any work, material, machinery, appliance or article at the premises and interrogate any person about any of the differences or about any work or thing; (c) to authorize any person to do anything that the arbitrator or arbitration board may do under (b) and to report back; (d) to make interim orders concerning procedural matters;11 (e) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.12
A right to notice of and participation in an arbitration proceeding exists where the interests of a party will be directly affected by the arbitration decision beyond the general interpretation of the collective agreement.13
A party permitted by an arbitrator to intervene in an arbitration proceeding will not be bound by the decision in that proceeding unless the party has consented to be so bound. An arbitrator may, however, require that the party give that agreement as a condition of allowing the intervention.14
When making an interim order, an arbitrator or the chair of an arbitration board is not permitted to order an employer to reinstate an employee in employment.15
Except where a collective agreement states that this provision does not apply, an arbitrator or arbitration board may extend the time for any step in the grievance procedure under a collective agreement, despite the expiration of the time, if satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. 16 This power does not apply to a deadline for referral to arbitration, the legislation only empowering the arbitrator to extend deadlines relating to the grievance procedure as distinct from the arbitration procedure.17 A claim for repeated and ongoing payments which are alleged to fall short of the requirements of the collective agreement may, however, give rise to an ongoing grievance.18
If an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by the employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty as seems just and reasonable in all the circumstances.19
The remedial authority of an arbitrator is not limited to granting or denying the remedy which may have been identified in the grievance documents.20
An arbitrator has the discretion to restrict compensation for a grievance to a reasonable period. Allowing unions to assert claims going back years or months potentially may allow workers to reap windfall benefits, and could impose on the employer substantial costs for which it may have made no provision.21
Jurisdiction to substitute an award of damages in lieu of reinstatement has generally been exercised in exceptional or extraordinary circumstances. The consequences of the conduct, not its characterization, should be the primary focus of the remedial inquiry. Commensurate with the notion of exceptional circumstances as developed in arbitral jurisprudence is the need for arbitrators to be liberally empowered to fashion appropriate remedies, taking into consideration all the circumstances. When the collective agreement rights of a grievor have been violated, reinstatement to his or her previous position will normally be ordered. Departure from this approach should occur only when the board's findings reflect concerns that the employment relationship is no longer viable. In making this determination, the arbitrator is entitled to consider all the circumstances relevant to fashioning a lasting and final solution to the dispute.22
An arbitrator or arbitration board has exclusive jurisdiction to settle a grievance involving the interpretation of a collective agreement and no recourse to the courts or to common law remedies is available, whether or not grievance procedures have been exhausted.23 A civil action is still available, however, to the extent that the dispute does not in its essential character arise from the interpretation, application, administration or violation of the collective agreement.24 Furthermore, to the extent that the legislated scheme for settlement of labour disputes provides no adequate alternate remedy, the courts retain a residual discretionary power to grant relief.25
The standard of proof to be applied in labour arbitrations is clear and convincing evidence on a balance of probabilities.26
A party moving for a nonsuit in the course of an arbitration hearing will ordinarily first be put to its election to call no evidence.27
The principle of res judicata applies to the arbitration of grievances under a collective agreement.28
An arbitrator's jurisdiction ends with the final determination of the matter before him or her. An arbitrator cannot, after issuance of an award, decide matters which were not submitted at the hearing, or add or expand to the award. The arbitrator may only, if necessary, give directions to allow the remedy to be effected. 29
II.8.(b).(vii) Effect of Decisions
See Canadian Abridgment: LAB.I.8.g.iii.B Labour and employment law | Labour law | Labour arbitrations | Arbitration award | Enforcement | Miscellaneous
The decision of an arbitrator or of an arbitration board is binding (a) upon the parties, (b) in the case of a collective agreement between a trade union and an employers' organization, upon the employers covered by the agreement who are affected by the decision, (c) in the case of a collective agreement between a council of trade unions and an employer or an employers' organization, upon the members or affiliates of the council and the employer or the employers covered by the agreement, as the case may be, who are affected by the decision, and (d) upon the employees covered by the agreement who are affected by the decision. Furthermore, such parties, employers, trade unions and employees are obligated to do or abstain from doing anything required of them by the decision.1
II.8.(b).(viii) Enforcement of Decisions
See Canadian Abridgment: LAB.I.8.g.iii Labour and employment law | Labour law | Labour arbitrations | Arbitration award | Enforcement
Where a party, employer, trade union or employee fails to comply with any of the terms of the decision of an arbitrator or arbitration board, any party, employer, trade union or employee affected by the decision may file in the Superior Court of Justice a copy of the decision, exclusive of the reasons therefor, in the prescribed form, whereupon the decision is entered in the same way as a judgment or order of that court and is enforceable as such.1
II.8.(b).(ix) Review of Decisions
See Canadian Abridgment: LAB.I.8.h Labour and employment law | Labour law | Labour arbitrations | Judicial review; LAB.I.8.i Labour and employment law | Labour law | Labour arbitrations | Review by administrative tribunals
The decision of an arbitrator or arbitration board is reviewable only on the grounds that it is unreasonable, where the decision is one within the arbitrator's field of specialized expertise. This requires that the decision be assessed to be within a range of acceptable outcomes which are defensible in respect of the facts and law.1 Where, however, an arbitration board interprets and applies questions of general law of central importance to the legal system as a whole and outside their area of expertise the decision of the board is reviewable on the standard of correctness.2
The standard of review for an arbitrator or arbitration board's interpretation of a collective agreement is reasonableness.3
II.8.(b).(x) Remuneration
See Canadian Abridgment: LAB.I.8.e.xii Labour and employment law | Labour law | Labour arbitrations | Practice and procedure | Miscellaneous
Where the Minister appoints an arbitrator or the chair of an arbitration board at the request of the parties, each party must pay one-half of the expenses and remuneration of the person appointed. Where the Minister appoints a member of a board of arbitration on failure of one of the parties to make the appointment, that party must pay the remuneration and expenses of the person appointed.1 Where the Minister appoints a single arbitrator, each of the parties must pay one-half of the remuneration and expenses of the person appointed.2
II.8.(b).(xi) Arbitration Act
See Canadian Abridgment: LAB.I.8.b.i.B Labour and employment law | Labour law | Labour arbitrations | Jurisdiction of arbitration board | Source | Statute
The Arbitration Act, 1991 does not apply to arbitrations under collective agreements.2
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