A recent BC arbitration revisits theissue of when a previous settlement can render a grievance inarbitrable.
The grievance raised allegations ofpersonal harassment on behalf of two grievors. The union alleged that the employerviolated the parties’ collective agreement by paying the legal fees of another unionmember who threatened legal action against the grievors.
The employer objected to thearbitrability of the grievance on three grounds, one of which was that the issuesraised in the grievance were, in substance, the same as the issues raised in anearlier grievance filed by the union regarding the employer’s payment of thelegal fees. It argued that the earlier grievance was settled by duly authorizedrepresentatives of the employer and the union, and that it was an abuse ofprocess for the union, having settled the earlier grievance, to seek toresurrect it under a different guise.
The arbitrator dismissed the grievance asinarbitrable, accepting the employer’s argument that the grievances were thesame in substance since they were founded upon the same incident, even thoughthe grievance forms referred to different articles in the collective agreementand sought distinct forms of relief. Afactor critical to the arbitrator’s decision was that the first grievance wasconcluded through a settlement of “all issues” pertaining to the payment of thelegal fees, and not through an award that did not determine the harassmentissue.
KwantlenPolytechnic University -and- Kwantlen Faculty Association, September 27, 2012
Please contact Partner Colin Gibson for any questions pertaining to the information presented in this article.