What does it mean to withdraw your grievance?
When a worker makes the decision to withdraw a grievance, it means that the grievance comes to an end. It does not necessarily mean that the grievor or union have accepted what the Employer did or the employer’s interpretation of the issue. Workers may choose to withdraw a grievance for any number of reasons, including that they changed work locations, the issue has resolved itself, or they are no longer interested in pursuing their grievance.Is there a proper way to withdraw a grievance?
Yes, the best way to withdraw a grievance is in writing; you can fill out a grievance withdrawal form or just simply state your wish to withdraw in an email to your representative. Depending how far along in the process the grievance is that might be the Steward, Local President, or Grievance Officer. If you let us know only by a phone call, we will keep careful notes of the call, and send you a confirming email – but it is clearest for everyone if we all have a written version of the request. A policy grievance (also referred to as a union grievance) can be withdrawn by the appropriate union official or representative.When the union notifies the employer of the withdrawal, it is important to include a note that the grievance is being withdrawn “without prejudice” to any other matter between the parties. When the union requests that a withdrawal be “without prejudice”, it is saying that the action of withdrawal is not meant to negatively impact the Union’s legal rights or positions moving forward. The withdrawal of a grievance may be a barrier to the arbitration of a second grievance which deals with the same issue if an arbitrator determines that the grievance was withdrawn “with prejudice” – i.e. in a way that could imply an intention to negatively impact the party’s legal rights. Obviously, we can’t withdraw and then turn around and file on the same exact thing again. An arbitrator might even, depending on circumstances, view a withdrawal as the grievor and union agreeing with the Employer’s interpretation of the issue. This can best be avoided if a grievance is withdrawn on a “without prejudice” basis and that withdrawal is accepted by the employer.What are the consequences of not including “without prejudice”?
The key issue that was determined in the case of Ontario Public Service Employees Union (Valade et al.) v. Ontario (Liquor Control Board of Ontario), 2022 CanLII 124195 (ON GSB) is whether or not the withdrawal of the policy grievance in dispute was considered to have been a withdrawal on a with prejudice basis such that the Union is prevented from pursuing individual grievances on the same subject matter.Following the reasoning of Arbitrator Burkett in the St.-Gobain Abrasives decision (supra), there is not a blanket rule that the simple withdrawal of a grievance automatically bars the filing of a secondary grievance on the same issue. A withdrawal does not always indicate a concession to the other party’s interpretation; grievances may be withdrawn for a number of reasons. However, there are certain criteria that an Arbitrator may consider when deciding if a grievance was withdrawn on a “with prejudice” basis:- Was the grievance withdrawn at a later stage of the grievance procedure?
- Was the withdrawal in writing, signed by a responsible Union official?
- Was the withdrawal not made on a without prejudice basis?
Final Thoughts
This decision serves as an important reminder to always include the language “without prejudice” when communicating to the employer that we are withdrawing a grievance – whether it be a policy grievance, group grievance or an individual grievance. Failing to include “without prejudice” could stand to have negative consequences for related or future grievances. Decisions and communications about grievances should always be deliberate and clear.The full decision can be accessed here: https://canlii.ca/t/jtrcgOther Contract Enforcement Blawg posts