Arbitration

Settlement Means Silence

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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.

Click here to read the details of the case as reported by the CBC.

Click here to read a legal opinion about the results of this case.

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.

Discussion Questions:

  1. As the Union representative in this case, how would you have handled the actions of the grievor?
  2. 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?
  3. Do you think the final decision by Arbitrator Kaplan was justified? Explain your rationale.

Unlawful Strikes

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As Canadians, we have a reputation for being a polite, respectful, and peaceful society.

Most of the time, we are known for upholding the rule of law. We function, generally, within reasonably acceptable parameters which include compliance with civil legislation. This includes the need to follow the statutory regime that upholds and frames the rights provided under specific labour relations legislation. Even if there are public displays of labour-related problems or conflicts, these are typically narrow in focus and usually driven by legitimate and acceptable labour practices.

It is unusual, therefore, to read and hear about the recent unlawful actions taken by Unifor against General Motors in Canada. Last year, General Motors announced that it would be closing its Oshawa plant, which will result in a massive loss of jobs for its unionized workforce. In response to this devastating announcement, Unifor has implemented a series of strike-related actions which are prohibited because an existing collective agreement is in place.

When two parties (the employer and the union) negotiate and agree to the terms of a collective agreement, this includes language within the agreement that states there will be no strike or lockout for the duration of the contract.  When there is a violation of the contract by one of the parties, the remedy is to file a grievance in order to restore the terms of the collective agreement.  If the parties are unable to do this on their own, the alleged violation goes to the applicable labour relations board for third-party resolution.

In the case of Unifor and General Motors, it appears that the union purposefully entered into a series of actions which, from an outsider’s perspective, ought reasonably to be known as violating the collective agreement.

Click here to read about the illegal strike action taking place at General Motors.

It is no surprise, then, to read that the Ontario Labour Relations Board issued a ruling that declared the activities by Unifor as illegal and required the union (Unifor) to cease and desist in the promotion of illegal strike action.

Click here to read about the ruling issued by the Ontario Labour Relations Board (OLRB).

Click here to read the decision.

Why would Unifor proceed in the manner that it did? Unifor is a significant and sophisticated entity that represents thousands of workers across the country. The decision to enter into illegal strike action is not one that any union would enter into lightly or on a whim. The leadership at Unifor would know that the outcome of such action would result, as it did, in the decision of the OLRB to go against them.

One of the statements in the article refers to the union’s perception that the employer (General Motors) had violated the collective agreement in the first place by issuing the notice of plant closure. This gives the impression of tit-for-tat negotiating strategy that belies the seriousness of the actions taken on the part of the union.

Perhaps this case shows us that, even though we are law-abiding Canadians, sometimes we do need to take a stand in order to take action against decisions that affect the well-being of us all.

Discussion Questions:

  1. Why do you think Unifor made the decision to proceed with an unlawful strike?
  2. If you were representing the workers at General Motors, would you encourage unlawful strike action in this case? Explain your rationale.
  3. What impact does the decision from the OLRB have on continuing labour relations at General Motors?

Tragic Consequences

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A recent case making the headlines was the publication of charges against two paramedics for ‘failing to provide the necessities of life’ to an injured person. These charges stemmed from the tragic death of that person, who was a young man acting as a Good Samaritan during a violent incident in Hamilton, Ontario at the end of December 2017.

Click here to read about the charges.

A week after receiving the criminal charges, the two paramedics were terminated from their employment as first-responders with the City of Hamilton. As these paramedics are represented by the Ontario Public Service Employees Union (OPSEU), their union issued a very strong public statement vowing to challenge the termination of employment through the grievance procedure.

Click here to read OPSEU’s reaction to and statement about the termination of employment.

As noted in the reaction from OPSEU representative, Mario Posteraro, the union has taken the position that the rationale for terminating these two employees is both precedent setting and unjust. From the employer side, while there is very little fact-based information provided by the City of Hamilton, it seems that an internal investigation was completed by the employer, resulting in a decision to terminate employment.

From a process perspective, what this case makes clear is that there can and should be multiple investigations, findings, and results when a serious work-related incident takes place. We’ve already seen that there are criminal charges, resulting in criminal court proceedings. In addition, there are now civil proceedings underway, stemming from the decision to terminate the employment of the two paramedics. The latter will follow the grievance process outlined in the collective agreement between the City of Hamilton and the OPSEU bargaining unit representing the paramedics.

Both proceedings (criminal and civil) run parallel to each other as separate processes with potentially different outcomes. The criminal charges may be dismissed, or they may result in a criminal conviction. In either case, the grievance procedure will follow its own path and, if no resolution is reached, an arbitration hearing will take place. The criminal proceedings and possible results may have no bearing on the outcome of the grievance and arbitration procedures. The arbitration hearing will determine whether or not the termination of employment was justified, based on the facts and evidence arising from the employer’s investigation into the workplace conduct of the two paramedics. If the evidence supports the employer’s decision to end the employment relationship for just cause, it will be upheld. If it does not, the termination of employment may be dismissed. If the termination is not upheld, the terminated employees may be returned to work, or be awarded whatever remedy the union would want in this case.

Time will tell how these processes will play out. No matter what the outcomes are, this is a difficult and challenging case that may never see a satisfactory resolution, given the tragic loss of life and the events that unfolded as a result.

 

Discussion Questions:

As the HR practitioner for this case, would you advise that the paramedics be terminated from employment? Explain your rationale.

Identify the rationale for filing a grievance from the union’s perspective.

If you were the union representative in this case, what is the best outcome you would hope to achieve for the two terminated employees whom you represent through the grievance process?

 

Don’t ‘Phub’ Your Way into Grievances

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Many of you may not have heard the term “phubbing” or “being phubbed,” but you probably have done it to someone else, or experienced it first-hand.

In today’s workplace, we need new words to explain our interaction with technology. Phubbing is the combination of being snubbed by someone who is using their smartphone to ignore you. And it’s no surprise this social behaviour is affecting our workplace relationships.

Why should a HR professional who works in a unionized environment care about this concept of phubbing? Well, the main reason is it erodes trust, and whenever you erode trust in a unionized environment, you get more grievances.

More grievances make it harder to maintain positive labour relations in the workplace. Phubbing can very easily damage trust and employee engagement, and now research from Baylor University’s Hankamer School of Business is shining a light on this issue.

How do supervisors destroy trust, by violating the psychological conditions that breed trust and lead to employee engagement? Here are the results of the research:

  • 76 per cent of those surveyed showed a lack of trust in a supervisor who phubbed them
  • 75 per cent showed decreases in psychological meaningfulness, psychological availability, and psychological safety with phubbing

All of this will reduce employee engagement. HR needs to be aware of phubbing and how it affects its organizational cultural. HR must take the lead role in organizations by understanding the vital importance of face-to-face relationships in the workplace and put measures and practices in place to decrease opportunities to phub and to increase opportunities to have meaningful conversations.

Read more at about phubbing here.

Discussion questions:

  • What are five things HR can do to decrease the incidents of phubbing?
  • What are five things HR can do to formally increase the incidents of meaningful conversations between supervisors and employees?

The Power Of An Apology

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Does ‘I’m sorry’ suffice?

There is something uniquely significant in the power that comes with saying the word ‘sorry’ that causes a shift in the dispute-resolution process.  If there is a signal of remorse or regret for one’s actions, this often opens the door to forgiveness for those actions and the possibility of some form of redress and resolution.

This scenario played out recently in a privacy breach case, which took place in British Columbia.  A nurse’s employment was terminated for cause due to her unauthorized snooping into patient medical records that were not assigned to her. As the nurse was represented by a union, the termination was grieved on her behalf, and the process for resolution went through the procedural steps to an arbitration hearing.

After hearing arguments from both the employer and the union, the arbitrator made the decision to have the nurse reinstated into her former position. This decision was based on a number of factors and was influenced heavily by the degree of remorse that the nurse showed during the course of the arbitration proceedings. The employer appealed the decision, but it was upheld upon review.

Click here to read to read a summary of the case and the review.

For the Human Resources practitioner there are a few lessons to be learned from these two decisions.

First, the concept of zero tolerance in employment policies and procedures may not be sustainable. This does not mean that the employer must accept unacceptable employee conduct or prohibited behaviour. It does mean that the employer, especially in a unionized setting, must be able to apply a level of disciplinary penalty that is proportionate to the alleged incident.

Arbitrators look to the correlation of the imposed punishment to the alleged ‘crime’. In this case, would the termination have been upheld if the employee had received a disciplinary warning or a suspension prior to this culminating incident? It is possible that the outcome would have been different.

Second, the issue of remorse comes into play as a powerful lever for possible rehabilitation and reinstatement. If someone shows true regret for their actions, an arbitrator may determine that this response is authentic and deserves forgiveness in the form of the employee getting their job back.  What it does not take into consideration is the impact of the breach of trust that has happened between the employee and the employer. In this case, how will the employer be able to reconcile its responses to this employee as she comes back to work?

When an employee is returned to their previous position as a result of an arbitration decision, especially one that has been upheld upon appeal, there is no going backwards for either party. The employer will probably not want to pursue any type of supervisory action against the employee because the return to the position is one that was ‘forced’ through the arbitration process.Unfortunately, there is a resulting perception that the employee will be untouchable for the rest of their tenure with the employer. The employee will probably perceive any move on the part of the employer as retribution for their actions or feel that their performance is under constant scrutiny, even if it is not.

At the end of the day, forced reinstatement does not reduce the possible consequences of a severely damaged employment relationship. The only possible remedies that can help rebuild a fractured employment relationship may be some continued apologies and the acceptance of forgiveness for everyone involved.

Discussion Questions:

  1. If you were the employer in this case, how would you perceive the grievor’s attempt at remorse?
  2. Do you think a zero tolerance policy for privacy breaches in a health care setting is appropriate? Explain your rationale.
  3. If you found out your confidential health records were accessed by someone who did not have authorized access, how would you respond? What would you expect the employer to do in your case?
  4. As the HR practitioner in this case, what steps would you put into place to prevent privacy breaches in the future?