The Preliminaries to Arbitration
When filing a grievance, you must follow the steps of the grievance procedure that is outlined in your collective agreement. This will help make sure that the issue can be dealt with in a timely manner and that your time limits do not expire.
Sometimes, a technicality can stop a grievance from going to arbitration. The Union or the employer can make a preliminary objection before a hearing, and the grievance may be dismissed without any presentation to an arbitrator.
Preliminary objections can be based on a number of things: Failure to follow the grievance procedure or timelines outlined in the grievance procedure; Improper filing or characterization of the grievance, or; Whether the grievance can, or should, be heard by the arbitrator.
The most notable objection, and the easiest to prevent, is the timelines objection.
Although timelines are an important part of the grievance procedure in the collective agreement, section 48(16) of the Ontario Labour Relations Act allows arbitrators to extend the timelines outlined in the collective agreement if a convincing argument can be made to do so.
There are a number of defence arguments the Union might be able to use to achieve timeline extensions when warranted. These include: Past practice in the workplace; Whether the agreement language is mandatory or a guideline, and; Whether the employer waived the grievance procedure and arbitration timelines.
Another common objection used is improperly characterizing a grievance. This refers to whether a grievance is properly filed as a policy, group, or individual grievance.
The last notable objection is whether a grievance issue directly relates to a provision in the collective agreement. If not, the arbitrator may not have the proper authority to hear the grievance.
Overall, it’s always better to follow the guidelines in your collective agreement for filing a grievance. Ensuring the proper information is included, plus any supporting evidence, all completed within the allowed timelines, can make a big difference toward achieving a positive outcome for the Grievor.