A recent case resulting from the termination of a unionized employee, provides us with some interesting insights into the grievance and settlement processes, which include the provision of confidentiality agreements.
As we know from our labour relations studies, the union is the sole legal representative for the employees who are members of the bargaining unit or association. This means that the union speaks for the employee/member. It is the union who, typically, negotiates the terms and conditions of any settlement agreement that arises from the grievance process on behalf of the employee/member. This does not mean that the employee/member (who is the grievor in this case) does not participate in the settlement processes. The union is obligated to ensure that they represent the best interests of the grievor which includes making sure that the member/employee is present, participates and is fully cognizant of the details of any settlement document.
Settlement documents are considered valid and enforceable when they are ‘fully executed’. This means that all parties to the settlement sign and agree to the terms including the employee/member. It is typical to see both the employee/member’s signature and the union’s signature on a settlement document, along with those of the employer. A signed settlement document is a legally binding contract. Should one of the parties break the terms of the contract, the entire document may be considered null and void. In this case, it should be no surprise to anyone that, once the terms of the contract were breached by the grievor and continued to be breached after receiving a clear warning from Arbitrator Kaplan to stop breaching the agreed upon terms, that the grievor ended up with nothing as a result.
When an employee is terminated for cause, the employer is relieved of their obligations to pay severance or notice. However, through the grievance and arbitration procedures, the union will argue that the employer had no right to terminate the employee for cause. Whether or not the actions of the employer were justified become the focal point of the case and if not justified, one of the remedies may be payment in lieu of notice or severance provisions by the employer to the terminated employee/member. In this case, under the agreed upon terms of settlement, it seems that the grievor would have received some kind of monetary compensation in order to bring closure to this case. It is possible that the termination for cause may or may not have been justified as the parties agreed to settle the grievance before proceeding to a full arbitration hearing. Once the settlement was signed, no further action on this case would have taken place had the parties (including the grievor) abided by the terms of settlement.
At the end of the day, however, the grievor ended up where he began at the beginning of the grievance process – without a job, without any compensation for the loss of that job and perhaps with some public damage to his reputation. All of which seems to be as a result of his own making.
- As the Union representative in this case, how would you have handled the actions of the grievor?
- This case starts with the employee’s termination for cause. Why do you think the actions of the employer (the University) were grieved by the union?
- Do you think the final decision by Arbitrator Kaplan was justified? Explain your rationale.