Area of Law: Employment Law
Answer # 626
The Grievance and Arbitration processRegion: Ontario Answer # 626
Every Collective Agreement usually contains a grievance and arbitration procedure, though there are many variations in the actual process set out in each. The purpose of the procedure is to resolve disputes between employees and the union on the one side, and the employer on the other, in regards to matters covered by the Collective Agreement.
Essentially, the grievance process is the first process and arbitration is only pursued if the dispute is not resolved during the grievance process.
Grievance procedures usually have two or three steps, or stages, involving progressively higher levels of management and union representation. The grievance and arbitration clause will set out time limits for proceeding to each subsequent stage of the process.
Types of disputes
The most common dispute is whether a discipline or discharge was proper. Examples of other disputes that can be resolved using the grievance and arbitration procedure include a claim by an employee that the wage rate set out in the agreement has not be paid, that an overtime assignment was wrongly made, or that a safety shoe allowance has not been paid.
Employees are usually required to first discuss most complaints with their supervisor. If the supervisor cannot resolve the problem, then the dispute will proceed to higher levels of the grievance process in the search for a resolution.
In situations that impact many employees, unions usually have the right to submit a group complaint, often called a policy grievance. In a policy grievance no particular employee involved in filing the grievance is named.
Steps from grievance to arbitration
The right to go to higher levels in the grievance procedure and ultimately to arbitration is almost always the right of the trade union, not the employee. For various reasons, the union may decide not to pursue the employee’s complaint.
If the matter is not resolved at some level of the grievance process, the union may take the matter to arbitration. Arbitration is a type of informal court. The arbitrator is the judge, but unlike the courts, this judge is paid for by both the union and the employer in equal amounts, regardless of who wins the case. The arbitrator can be selected by agreement or, if either the union or employer asks, by the Ministry of Labour.
Three person Boards of Arbitration were once popularly used. They consisted of the neutral arbitrator, an arbitrator appointed by the union and an arbitrator appointed by the employer. Not surprisingly, most decisions were two to one. Today, the use of a single arbitrator rather than a Board is common.
At an arbitration hearing, both sides present their case. Facts must be either agreed to, or proved by witnesses and other evidence such as documents. Following the hearing, which can take many days in complex situations, the arbitrator will usually take some time to consider the problem and then issue a written decision. The arbitrator’s decision is legally binding and final.
For more information about arbitration, refer to the Arbitration and Mediation section of this website. For more information about the grievance and arbitration process in Ontario, visit the Ministry of Labour, Training and Skills Development website. For legal help and assistance, contact an employment lawyer.
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