WDW 244 Labour Relations

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WDW 244 Labour Relations

• Arbitration Introduction and Overview of
  Assignment
• October 23, 2003

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Introduction

• Next class Prof. Reid will cover the grievance
  arbitration process theory and practice
• As a starting point Why is grievance arbitration
  important?
• An example

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Rebeccas story

• Seven months working in an art gallery
• Dream job, but
• Bad chemistry with new manager
• On arrival at work one Friday, called into office
  and fired. Hand in keys, clean out desk and leave
  the premises with two weeks pay.

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What are Rebeccas rights and remedies?

• Without a union?
• With a union?

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Approaching an arbitration issue

• What is the key issue in dispute?
• What does the law say about the issue?
• Apply the law to the facts of your case.

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Approaching an arbitration issue

• 1. What is the key issue in dispute?
• E.g. someone was fired
• Unpaid overtime
• A worker was denied a promotion

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Approaching an arbitration issue

• What does the law say about the issue?
• Always look at the contract first
• The answer may be there
• But often terms (eg. just cause) are not
  defined.
• Case law
• Arbitrators have build up a vast body of
  decisions set out principles for interpreting
  contracts.

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Approaching an arbitration issue

• Apply the law to the facts of your case.
• More on this below

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Lets look at last years assignment

• Long term employee with a good record.
• Safety sensitive job.
• Drug use before shift starts.
• Terminated.

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1. What was the key issue?

• Unjust dismissal drug use.
• May also be preliminary issues
• Is there a valid collective agreement in force?
• Was a grievance filed in a timely manner?
• In this case, yes.

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2A. What does the law say?

• The contract
• No unjust dismissal.
• No specific prohibition on drug use.
• Note
• Also keep an eye out for whether the employer
  followed the contract in the manner in which the
  employee was dealt with, e.g. right to union
  representation.

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2B. What does the law say?

• The case law where to start
• Leading Cases on Labour Arbitration
• Canadian Labour Arbitration
• Both are huge thats why you need to define
  your issue first.
• It is appropriate to cite texts in making your
  argument.

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Case law, continued

• Strengthens argument more to cite a case on
  point.
• Not necessarily similar facts, but similar
  principles.
• The LACs Labour Arbitration Cases
• Over half a century of labour arbitration
  jurisprudence.

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LACs how to find, how to cite

• Chilliwack General Hospital (1994) 42 L.A.C.
  (4th) 422 (Kelleher).
• Cases are cited in the footnotes of the texts
  noted above.
• Go to the case, check that it makes the point you
  want, quote relevant passage if it helps you make
  your point.

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Using cases to support your argument

• Be selective dont need to cite multiple cases
  to make the same point.
• Reasons are more persuasive than references.
• A recently decided case will have more influence.
• If the leading case seems to go against your
  argument, think about how you might distinguish
  your case from the earlier one.

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3A. Applying the law to the facts of your case

• Its not in the truth, its in the proof.
• You cant know exactly what happened all you
  can do is build an argument with the facts that
  you do have.

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3B. Applying the law to the facts of your case

• Burden of proof
• Who has it?
• Usually the onus is on the party alleging
  violation of the agreement (typically the union).
• In some cases (e.g. discharge) the onus shifts to
  the employer.
• Party bearing the burden of proof goes first.
• If the arbitrator cannot decide whose version of
  the facts is true, the party who bears the burden
  of proof will fail to satisfy the onus upon it.

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3C. Applying the law to the facts of your case

• Standard of Proof
• In a criminal trial Beyond a reasonable doubt.
• In an arbitration Balance of probabilities.
• For some issues, arbitrators may set a higher
  standard of proof (clear and cogent evidence).

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3D. Applying the law to the facts of your case

• Is all evidence admissible in arbitration?
• E.g. Could the employer use personal e-mail
  messages that you sent while at work as evidence
  against you?

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Bringing it all together

• Define the key issue or issues.
• Look at the texts and try to find relevant cases
  directly related to your key issue (four cases is
  sufficient for this assignment).
• Apply the law to the facts as you know them.
  Dont get hung up on facts that you dont know.

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Good writing tips

• Do use plain English. Be clear and succinct.
  Subheadings can help.
• Dont use jargon or buzzwords if it can be
  avoided.
• Do cite cases and text references accurately.
• E.g. Chilliwack General Hospital (1994) 42 L.A.C.
  (4th) 422 (Kelleher).
• Do proofread carefully for spelling and grammar.

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Evaluation

• Clarity issues, evidence, analysis clearly laid
  out.
• Thoroughness relevant text and references cited
  balance this against space constraints.
• Style of presentation well written and
  persuasive, effectively communicates points to
  the reader.
• Grasp of subject demonstrates your ability to
  learn through independent study.

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Good luck!

• Office hours noted on assignment.
• E-mail jonathan.eaton_at_utoronto.ca