If your business operates in a unionized setting, ill-considered action at the onset of a dispute can have major consequences. That means it’s crucial to approach grievances in the labour context with care, patience and a view to the big picture. “Most arbitrations are won or lost long before you get to the arbitration hearing,” says James Kondopulos, a founding member and partner at employment and labour law boutique Roper Greyell LLP. Here, he highlights five critical mistakes to avoid in the lead-up to labour arbitration.
1. Not knowing your collective agreement
The bargain you have struck with your trade union governs your relationship with your workforce, so make sure you are very familiar with it. “If you don’t know the rules of the relationship, how can you make an educated decision?” says Kondopulos. And your knowledge shouldn’t end there, he adds: being familiar with precedent from arbitration cases arising out of similar unionized settings can help guide your actions in your own workplace.
2. Making decisions in the heat of the moment
Many employers act too quickly without taking the time to fully understand the situation—say, for example, firing an employee for theft without first considering a good employment record and clean disciplinary history, years of service, or complicating circumstances like substance addiction. “Avoid the ‘fire, aim, ready’ approach because it’s backwards,” says Kondopulos. “Poorly thought out, rash decisions can land you in hot water.”
3. Procrastination in the launch of an investigation
“Some cases need to be investigated quickly and with alacrity before evidence is lost or destroyed or those involved are influenced or collude to change their stories,” says Kondopulos. It’s even more important to get to the facts as soon as possible if, for example, there has been an assault or a human rights issue is at stake, so that future harm can be prevented.
4. Accepting what you hear without verification
Believing witness statements without checking them against the surrounding evidence or context can lead to serious flaws in your arbitration case, says Kondopulos. “Think critically about how what you are told meshes against reality and probability. You have to think about things like a witness’s motivation, or whether the testimony is hearsay or, worse yet, double hearsay.”
5. Going to litigation solely on principle
Unless you are in a sector where it is important to litigate on principle—for example, the financial services sector, where employee honesty and integrity are critical values—it’s sometimes better to take the long view before pressing every case. “You need to think about resources, cost, the time of key people and, especially in the context of ongoing labour relations, your long-term relationship with the other side,” says Kondopulos. “Really reflect on the strengths and weaknesses of your case, and whether you could sort things out in a grievance meeting before going to a full hearing on the merits.”
To learn more strategies for success in labour arbitration and to hear about recent notable arbitration cases, join James Kondopulos and fellow Roper Greyell lawyer Jennifer Hogan as they present a 2016 Labour Arbitration Update webinar on November 1. This webinar has been preapproved by the HRMA as credit toward your Continued Professional Development hours.