My last post was about withdrawing grievances and whether this was with or without prejudice. The issue is certainly divided from a labour relations perspective, though the law seems to be established. Why should a union be allowed to withdraw a grievance on a without prejudice basis once the hearing has commenced, evidence called and the parties (employer in the case of a withdrawal) put to the cost and expense of attending a hearing?
The same arbitrator that decided the case discussed in my last post considered the issue even more recently in Peterborough County – City Health Unit v Ontario Public Service Employees’ Union, Local 327, 2015 CanLII 19723 (ON LA).
Two days before what would have been the fourth day of hearing, the union sought to withdraw on a “without prejudice” basis. The employer argued that the grievance should be dismissed on the merits, or that any withdrawal be “with prejudice”. In correspondence with union counsel, the employer requested that the Union “pick up” the cancelation fees associated with the cancelled hearing date. The union declined this request and pointed to the language in the collective agreement that provided that the cost of arbitration was to be shared equally between the union and employer.
The arbitrator set out the details of the withdrawal and terminated the proceedings “without prejudice to any position that any of these parties might take in a subsequent arbitration”.
Perhaps the result would have been different had the arbitrator heard sufficient evidence upon which to make a decision on the merits. There would seem to be some support for that proposition. That being said, there is a growing body of case law supporting that a withdrawal of a grievance is without prejudice to any position that make in any subsequent arbitration regarding the effect of the withdrawal.
One wonders whether employers would be wise to table proposals during collective bargaining to the effect that where a grievance is withdrawn, other than by reason of a settlement or perhaps reasons beyond the control of the union, after an arbitration hearing has been scheduled that the union will bear the costs of the cancelled hearing? I obviously don’t think this will get any traction, but these cases do require consideration of the issue.