So your Grievance is finally headed to Arbitration, but you have questions.
How do you prepare, what is involved, and what is an arbitration, anyway?
What should I wear at the arbitration?
Arbitration days, both in person and virtual, are business casual. While your representative will likely be wearing a suit or a variation of a suit, you are not required to. Please be aware however, that even for a virtual arbitration you have to be fully dressed (top and bottom) and upright, unless we are in a recess or you have an accommodation that prevents you from sitting or standing upright. Please also keep in mind that on your hearing days, and indeed during your meetings, you should not do anything that you would not normally do in an in person meeting. This includes brushing your teeth, going to the bathroom, drinking alcohol, or changing your clothes. We all know the dangers of mistakenly believing that our camera is off – the safest route to wait for an appropriate opening and simply excuse yourself, the same way you would do if you were in person.
What is the difference between mediation and arbitration?
Mediation
When the parties “mediate” they are attempting, usually with the assistance of a third party like an Arbitrator, to agree to the resolution of a dispute. This is usually in the form of a “Minutes of Settlement.” A mediated agreement is usually private and is generally not published. While an Arbitrator may assist the parties, the Arbitrator has no ability to force either of them to agree to a settlement; by nature it is something the parties are agreeing to. A settlement is final and binding when the two parties have a “meeting of the minds” – that is, when the parties agree to all the substantive terms, the agreement is binding, whether or not they have signed anything. While a verbal agreement is legally binding, we usually reduce it to writing so that we have a clear record of what was agreed to, and it is easier to enforce.
Arbitration
When the parties “arbitrate” it means that they cannot agree to a resolution and require a neutral third party like an Arbitrator to make a final, binding, decision about whether the Collective Agreement has been breached. You will hear us use this term interchangeably with the word “litigate”. The Union and Employer are litigating the grievance in front of an Arbitrator in a hearing. While in mediation the parties may be able to agree to a wide ambit of things, in an arbitration the Arbitrator may generally only decide if there has been a breach of the Collective Agreement. An arbitration is less formal than a court proceeding, but does involve the calling evidence and the submission of legal arguments.
Why Do We Mediate?
There are many reasons that the parties agree to settle a grievance rather than litigate or “arbitrate” it, and many factors that go into what we settle for (or the “quantum of settlement”). The main one is the legal strength of the grievance: an assessment of whether we would win the grievance if we went to a hearing, and if we did, what remedy might the Arbitrator order. Other considerations include: the losses that we can prove, the inconvenience, length and stress of a hearing, and (for the employer) the cost of a hearing, and (for both parties) the concern about having a public decision, and any number of other issues that are unique to each case. Wanting to settle is not an admission that a case is bad, or a concession that the other party’s case is good. Settlements are often a different and better result than we could achieve by arbitration, and sometimes better meet the needs of the worker.
Isn’t the first day always a mediation?
Not always. Often grievances at OPSEU/SEFPO are resolved through mediation, many times on or before the first day of hearing. But how the parties spend the first day is a matter of agreement between the union and employer. Unless both parties have agreed to mediate on the first day, there is no guarantee that is what will happen.
When would we not agree to mediate? Well, if the Employer refuses to mediate, that would be one good example of when we could not get to that agreement. The other times would be if we are convinced that there is no value to using a full day for mediation – if we believe that the parties are fundamentally unlikely to get to an agreement.
Will my Local President/Chief Steward/Steward be at the Arbitration?
Your local president, or steward is certainly welcome to attend, and we always look forward to working with them, and they are often an insightful presence. However, OPSEU/SEFPO only covers additional costs for them to attend if they are necessary to the proceeding. We can’t make an advance determination of every time someone is “necessary”, but someone is often “necessary” when they are the Grievor, when they are a witness, or when they have to make a decision on a settlement that will affect their local in a substantial way.
What’s a Grievance Officer and why are they calling me?
Cases at OSPEU are litigated by “Grievance Officers” or “GOs” who are employed by OPSEU/SEFPO in the Arbitrations Unit. A Grievance Officer may have a legal background, or have a background in labour advocacy through their other work; however they are all professional litigators who are prepared and ready to work tirelessly on your case.
Even where a Grievance Officer has been trained as a lawyer they are not your lawyer – all Grievance Officers are working at OPSEU/SEFPO as employees, and none are retained as your personal lawyer.
it is the role of a Grievance Officer to guide you through the grievance process and ultimately represent the Union at arbitration.
My case is really important. Am I entitled to a lawyer?
Your case is very important, to us as well as to you. On some occasions, when Grievance Officers have scheduling or other conflicts, a case is sent to one of several outside lawyers that OPSEU/SEFPO contracts with. This is based mainly on the availability of Grievance Officers for that particular date and is not connected to how important we think your case is. You are always going to get representation, and the representative is more likely to be a Grievance Officer than an outside lawyer.
What if I don’t like my representative?
It’s never fun to have to work with someone you don’t like, and it is extra difficult when the work you are doing is on your grievance. But, just like a work place, sometimes we deal professionally with people we wouldn’t choose, and we have to maintain certain standards of professionalism. Even if you dislike your representative, we know you can still work together the same as any other professional relationship. It is never, ever okay to be verbally abusive to a Grievance Officer or any other OPSEU/SEFPO staff member, even if you are really angry at them.
My representative said that they would be in touch 3-6 weeks from my hearing date to prepare. But my case is really important to me and I want to prepare now – what should I do?
Being eager to work on your grievance is a great step. You can check our links for information on how to get started preparing your grievance here and here. We will tell you that the single most valuable thing that all reps appreciate for almost every case is a detailed and accurate timeline. If you want to use this time to put together a timeline – a list of events and the date that each event occurred – that will be very valuable to your representative when they are starting to prepare.
Can I direct my representative in all aspects of my case?
Except in very rare circumstances, you make the decision on whether you want to file a grievance, settle a grievance, withdraw a grievance or litigate a grievance. However, in the presentation of a grievance we like to think we are working collaboratively with you on your case – that means that we will tell you when procedural or legal decisions about your case come up, we will tell you why we want to do a thing, and we will consult with you about it. Keep in mind – Grievance Officers are professional litigators who have a made a career out of presenting and litigating grievances, and they have excellent knowledge on how procedural and evidence related decisions will help or harm your case – much more so than the average layperson, and we don’t want to ignore that expertise; that means for decisions about the day to day running of the case, the Grievance Officer may take the lead.
What if I am dissatisfied with the outcome of my case?
The decisions of Arbitrators are final and binding, even when they are disappointing or when we think they are wrong.
I have other plans for my Arbitration date. Can you move it?
Probably not. Unless you are ill or in some way unable to attend, you are expected to attend your Arbitration date. If you are ill, please alert your Grievance Officer as soon as is practical. In some circumstances it is possible that we will have to produce medical documentation.
I need accommodations to participate in my Arbitration. What do I do?
OPSEU/SEFPO wants to accommodate you for your grievance, and, of course, we are also legally obligated to. Talk to your Grievance Officer about the accommodations you need, and we will see what our next steps will be. Some accommodations (like breaks in the hearing) probably need nothing more than a request, however some may require medical documentation, and agreement from the Employer or an order from the Arbitrator.
Please be aware that getting accommodations that will reduce the other parties ability to challenge evidence, or otherwise participate fully in a hearing may be super challenging or unachievable.
I don’t know if I want to file a grievance – I want advice on whether I should. Who should I call?
Grievance Officers are specialists who normally become involved in the grievance process at the point that litigation is going to start happening. If you need advice prior to that, the best person to call is your steward or your Local President. If, for some reason, you cannot talk to those people about your issue, you may consider calling your staff rep.
If your local representatives or the staff rep find themselves with a legal question they need our help on, THEY will give us a call to ensure that they are giving you the best advice that they have.
What happens to my case if I stop responding to the Union’s correspondence and phone calls?
Sometimes members file a grievance and later on either regret it, or simply find themselves with new or different priorities that do not involve pursuing that grievance. When that happens, often the member’s new priorities also don’t involve returning our emails. That is alright, and we respect those choices.
After a few attempts to contact a member, we will let them know that continuing to be non-responsive about their grievance will result in our understanding that their priorities have changed, and they don’t want to carry on with the process.
There is a large group of grievors in my case. Do I still have to attend?
Maybe. When there is a group of members that have all their grievances together, we ask them to select “representative grievors” who will be around to make decisions about the process – including consultation about procedural issues and making decisions on settlement offers. Those representative members are the ones who will have to show up on the day.
My employer has breached my settlement! What should I do?
It is the worst feeling in the world when a case you were confident was closed is suddenly back in front of you because the Employer has not done something they promised to do. If that happens, or if you think it is happening, call the representative who helped you get to the settlement, and they will listen to what happened and tell you the next steps available.
Why is my case on Zoom?
During the COVID closures period, the Arbitrations Unit reluctantly switched over to Zoom to do our hearings. Since then, we have found that there are both benefits and detriments of “zoom hearings” or “virtual hearings”. After the most stringent precautions against COVID were relaxed, the Arbitrations Unit has decided to maintain “virtual hearings” as a default for our hearings to prevent longer delays in resolving grievances.
Hearings are by zoom unless there is a good reason, related to the legal aspects of the hearing, to hold them in person.
Can I bring a parent/friend/spouse to the arbitration with me?
Of course you can! We want you to feel confident and comfortable at your hearing date, and if that involves a support person, we are happy to include them.
However, the support person cannot interfere with either the preparation or the hearing – that is, we cannot get information from your support person instead of you, and they cannot influence your testimony or evidence.
Further, if your support person is disruptive or abusive to any participant in the hearing, they may be required to leave. This, of course, very rarely happens.