What is the Scope of a Grievance?

The Newfoundland and Labrador Court of Appeal considered this in Newfoundland and Labrador Association of Public and Private Employees v. Canada.  In this case the arbitrator decided that a grievance that stated that it related to “suspension” of an employee,  could, nonetheless, be interpreted to include the termination of the employee.  The arbitrator decided that, in the event that he was wrong, the employer had, in any event, waived its right to object to the defect in the statement of the grievance.

Grievances are often drafted on the fly by lay people and a certain amount of latitude has generally been given to unions when they file their grievances.  That being said, the latitude is not unlimited.  In this case, the grievance simply provided that "Article 13.01 ‘B’.  ‘Suspension With-out Just Cause’".

The Trial Division concluded that the arbitration award be set aside " insofar as it refers to termination of the Grievor’s employment". 

The Court of Appeal held that the "standard of review that should have been applied to the arbitrator’s decision is reasonableness regarding the scope of the arbitration and correctness regarding waiver."  With respect to the scope of the grievance, the Court concluded:

1. Labour relations problems will be exacerbated if arbitrations are won or lost on the technicality of form.  As such, it is important to look for the “real as opposed to the ostensible grievance.”
2. To the greatest extent possible, a grievance should not be won or lost on the technicality of form, but on its merits.
3. Sometimes a "liberal" interpretation of the grievance form is required to get at the substance of the dispute.

The Court of Appeal disagreed with the Trial Division and held that the arbitrator had acted reasonably in defining the scope of the grievance as he did and in the approach he had taken (looking at the context and the surrounding circumstances) in doing so. 

Although the court agreed with the trial judge to the effect that the arbitrator had applied the wrong test regarding waiver, it was unnecessary for the court to consider that and its effect given its conclusion that the trial judge had properly defined the scope of the grievance.

What does this mean?  I suppose that an employer should not leave the matter to chance.  If it has concerns regarding the scope of the grievance it should raise its question at the earliest opportunity.  The case is an affirmation of the general belied that substance will override the form.