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.

At the hearing 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.

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 and deciding whether it was breached. Arbitrators can also decide if they have the authority to deal with an issue.

Arbitrators can determine if other laws, such as human rights laws or occupational health and safety laws, have been violated.

One matter that Arbitrators can deal with in workplace 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 harassment and their legal responsibilities under occupational health and safety laws must also be considered.

Arbitrators try to put the parties in the same position they would have been in if the collective agreement was not breached. They can also impose a penalty based on breach of a law such as human rights laws.

If the arbitration is successful, decisions may include…

• a declaration that the collective agreement was breached
• a directive to comply with the terms of the collective agreement
• a cease and desist order (directing a particular action to stop)
• a reversal of a disciplinary action or the imposition of a less harsh disciplinary action
• reinstatement
• back pay
• any remedy provided by another law, such as human rights laws, if the Arbitrator finds that law has been breached