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Overview of the Arbitration Process
Frequently asked questions:
Can I request that the Board try to settle my grievance before a formal hearing takes place?
Yes. The Board uses two methods of alternative dispute resolution-mediation and med/arb. To use these methods of alternative dispute resolution, the Board requires consent of all parties to a case. If any party request mediation or med/arb the Board will approach the other side to seek their consent.
What is mediation?
Mediation is a method of dispute resolution where a neutral
party brings both sides together to attempt to effect
a settlement of the grievance. No evidence is heard and
witnesses are not called and the person mediating the
grievance is not the person who will hear the grievance
if the case is not settled. Discussions are based upon
what both parties need to settle the matter. Nothing that
is discussed during the mediation can be used in the arbitration
if the case is not settled.
What is med/arb?
Med/arb is a method of dispute resolution where the person who will hear and decide the grievance attempts to mediate a settlement to the grievance before actually hearing any evidence in the case. If the parties cannot reach a settlement, the merits of the grievance will then be resolved through a formal hearing.
Who conducts the formal hearing?
One or three Board members hear the merits of your grievance. The decision will be based on the evidence presented at the hearing and the applicable law.
How are these people chosen?
The members of the Public Service Grievance Board are appointed by Order in Council, based on their
experience and understanding of the grievance arbitration process.
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What happens when the hearing starts?
Basic overview:
- Preliminary issues.
- Opening statements.
- Calling of evidence - witnesses and documents.
- Closing arguments.
The first part of the hearing deals with preliminary matters, such as:
- Determining that the Board has jurisdiction. This means that the Board panel is convinced that the matter to be decided properly falls within its mandate as described in the Public Service Act. Sometimes the employer will object to the jurisdiction of the Board to hear a particular case. The Employer is required to clearly state the reasons for their objection. You will be given an opportunity to reply to any objection.
- Filing documents. A copy of the grievance and other documents not in dispute will be given to the Board members. All documents given to the Board throughout the hearing will be numbered as Exhibit 1, 2, etc. You will be given a copy of all documents. If either party has a dispute about any documents, the other party may be required to justify the reason for submitting it. In this and other areas, you have the right to object. You do this by stating your reasons for your objection.
- Agreed facts. Sometimes the parties submit a list of agreed facts to the Board in an effort to clarify the issue and save time. As the name implies, this requires your prior agreement.
- Exclusion of witnesses. Either party may make a motion for the exclusion of witnesses other than the grievor. The motion does not require the agreement of both parties and is normally granted without question. This is done so the later witnesses will not hear the testimony of the earlier witnesses. If the motion is made, potential witnesses are not allowed in the hearing room until they are called. There is one exception. Both parties are allowed to keep one individual of their choice in the hearing room as an advisor, even though they may be potential witnesses.
- Full disclosure. Fairness requires that a party to be affected by a decision be informed of the case to be met. Disclosure of facts by both sides enables a party to review the facts, to prepare a challenge to them, to obtain evidence that rebuts them or reduces their impact and to prepare submissions concerning them.
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How does the hearing begin?
After any preliminary matters, the first event is an opening statement by both sides summarizing the case. This gives the Board an overview of what is coming and summarizes for all parties the basis of the employer’s case and your case. This opening statement should be short and to the point.
Who goes first?
The party that bears the onus to prove their case goes first. This is usually the grievor, except in cases of discharge or discipline where the onus is on the employer. So, in cases of discharge or discipline the employer goes first; in all other cases you go first. This is important, because it stays this way throughout the hearing.
Is this where we get to the witnesses and introducing evidence?
Yes. If you bear the onus, you proceed first. The witness is called - that is you say, ‘Mr. Chair or Madam Chair - My first witness is Jane Doe’. The Chair will put Jane under oath. This means she is legally bound to tell the truth as she understands it. The questioning of witnesses has three and important distinctive steps.
- Examination-in-Chief: First ask the witness
to identify herself and her knowledge of or relationship
to this case. As you get to the body of your questioning,
phrase your questions in such a way as to get
the witness to give factual information. Since
she is your witness, you will have had prior discussions
with her and you probably know what she will say
(remembering that she is under oath). Your questions
must be neutral. That is, you cannot ask leading
questions. A leading question is one in which
the answer desired is apparent in the question.
- Cross-Examination: The other party gets
to cross-examine the witness. They will try to
characterize the evidence to favour their side.
They have more latitude than the party calling
the witness. They can ask leading questions, like,
'Isn't it true that you weren't wearing your glasses
when you say you witnessed this event?' In some
circumstances, where the witness is clearly unfriendly
to the questioner, they can ‘badger’ the witness.
You have the right to object if you believe the
cross-examination by the other side is going too
far. The Chair will decide.
- Re-Examination: This is sometimes called
repairing the damage. You get another chance to
ask questions. But, you cannot raise any issues
not covered in cross-examination. Again, you cannot
ask leading questions.
When the other side calls a witness, they must
begin with examination-in-chief and you get to
cross-examine that witness, subject to their re-examination.
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Any suggestions about questioning?
Prepare carefully! Always focus on the result you want
to achieve. Your questions should be planned in detail
to bring out the information you want to place before
the Board. If a witness for the other side has made statements
detrimental to your case during Examination-in-Chief,
you should deflect or challenge his/her answers during
your Cross-Examination. Use the latitude given to lead
or even to cautiously badger. Your Cross-Examination and
Re-Examination should be as brief as possible. Don’t ask
a question unless you anticipate the answer will be helpful
to your case.
Is that the end?
No. After both parties have put forward their case, introduced evidence and questioned witnesses, we have the all important closing argument. The closing argument is a detailed review of the case characterized in a way to favour one side or the other. Here is what you should do to prepare:
- As with other parts of the process, the party
bearing the onus goes first. This is called argument-in-chief.
In essence it is best presented as a review of
the evidence, an analysis of the relevant policy
or legislative clauses, and a review of prior
cases that have dealt with a similar issue. The
other party then has an opportunity to present
argument-in-rebuttal. This consists of
a reply to the presentation of the first party
and a similar presentation in argument. Lastly,
the argument in reply is the final comment
by the original party. Of course, the comments
are confined to issues raised in reply.
- Argument can only be made using facts which are in evidence, that is evidence which has been presented through oral testimony or documents.
What should be in the review of the evidence?
Just as the name implies, this is a review of relevant
evidence and exhibits summarizing for the Board how the
evidence supports your position. If there is conflicting
evidence on a fact, it is helpful to argue why your evidence
should be preferred over the other side's.
What do you mean by relevant policy or legislative clauses?
- If the case alleges violation of a policy or legislation, you will need to suggest an interpretation of that policy or legislation for the Board. Often the case does not need such an interpretation. Most cases of discipline, for example, are based on the principle of ‘just cause.’
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Where do I find out about cases with similar facts?
Important precedent setting and recent decisions of the Public Service Grievance Board can be accessed through this website. All cases of the Public Service Grievance Board are located in the Board’s library.
Is that the end?
Probably. Although after the award is released, the Board panel can remain seized. This just means that if the parties have a problem with the implementation of the award or in interpreting the award, the same panel will reconvene to clarify matters.
Any other advice?
The staff of the PSGB cannot provide you with legal advice,
so if you think you require a lawyer, seek the advice
of one experienced in labour relations. In any event:
- First and foremost - advance preparation is essential.
- Ask for full disclosure from the other party well in advance of the hearing
so that you can prepare.
- Ask yourself - and the other side - is there any middle ground on this grievance? Is there any way to settle prior to the hearing? Quite often a mediator can be of valuable assistance. The Public Service Grievance Board can provide assistance in obtaining mediation.
- Research similar reported cases in order to prepare for the presentation of evidence as well as the closing argument.
- Plan the case, anticipating what the strategy and arguments for the other
side may be.
- Plan your opening remarks, your questions and cross-examinations.
- Have contingency plans to deal with any anticipated position or strategy the other side may take.
What else?
This brochure is designed for the layperson who wants
to present his or her own case or a grievor who wants
a better understanding of the process. You will not be
an expert as a result of reading this. The Panel Chair
will be flexible in describing to you what is happening
and why. You may ask questions during a hearing if you
require clarification.
Can I learn more?
Even the most seasoned lawyer can learn more! Here are some other references:
- ‘Labour Arbitrations and all that’, by John P. Sanderson, Q.C. Canada Law Book. This is the foremost source book for the lay person wanting to understand the arbitration process. Highly recommended.
- ‘The Labour Arbitration Process’ by Industrial Relations Centre of Queen’s University. This is a video with accompanying booklet.
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