Arbitration: What to Expect at Your First Hearing
The idea of going to Arbitration to settle a grievance can be intimidating.
Being required to attend an arbitration hearing, where you will be asked questions, where evidence will be submitted, and where lawyers will argue the sides of your case… it can all be daunting.
Here are a few things to know about the arbitration process and what you can expect if you need to attend one. You may also want to read The Importance of Documentation in Arbitration.
Arbitration Hearings are usually held in board rooms: Either in a hotel or in an office building. They do not take place in a court house.
The location will be a neutral space booked by the Arbitrator. So, it won’t be at your workplace or at the Union office. In fact, many times hotels will have more than one arbitration hearing going on at the same time. You will need to know the name of your Arbitrator so you end up in the right room, because it will be booked under their name.
Hearings almost always begin at 10 a.m. in the morning and are always scheduled for the entire day.
The Union will probably ask you to meet with the Union’s lawyer around 9 a.m.. This is so you can discuss things before the Hearing begins. It’s possible that your Hearing will wrap up before 5 p.m. but it’s also possible it will go longer.
It’s always best to assume you’ll need to be there from 9 a.m. to 5 p.m. So, plan accordingly for meals, medications, child care, travel, etc.
You may spend some time waiting for various reasons. So, you can bring a book or magazine with you. You could also bring a support person with you. Please make sure you check with your Union Rep or Union lawyer if you plan to do so.
Sometimes, on the first day of Hearing, your lawyer will meet with the employer’s lawyer in private. This might happen out in the hallway or in the Hearing room, in which case you’ll be asked to step out into the hallway. This can take some time and you will need to wait for these discussions to end before your Union lawyer comes to update you. The things they might discuss include:
- Preliminary legal issues;
- Narrowing down the issue(s); and/or
- Possibly settling the issue(s) before the Hearing even proceeds.
If these discussions don’t result in a settlement, then your Hearing will begin.
The presentation of evidence can take a long time. The reason for this is that your Arbitrator doesn’t have any advance knowledge about the case.
The lawyers present their cases with the assumption that the Arbitrator knows nothing about your workplace and has no background information on the issue either. For that reason, both sides attempt to put their best case in front of the Arbitrator. This includes presenting the full story from beginning to end. That presentation will include evidence from witnesses and any relevant physical evidence.
Witnesses should speak slowly and clearly to allow the Arbitrator to take notes. Overall, it can be a long, slow process.
It’s unusual for a Hearing to be over in one day. At the end of the day, or possibly by email afterward, your Arbitrator will set further Hearing dates. They may be a month or two away. Sometimes five days’ worth of Hearings can be spread out over five months.
Check out this list for how your Hearing day will likely proceed.
As you can see, a Hearing can take a very long time.
Opening statement by your Union lawyer.
This includes what the case is about and the type of evidence the Arbitrator will hear.
Opening statement by the employer’s lawyer.
“Direct examination” of the Union’s first witness.
Your Union lawyer will ask the witness questions to assist in a direct telling of the story.
“Cross-examination” of the Union’s first witness.
This is an opportunity for the employer’s lawyer to ask the same witness questions. Generally, they will attempt to try and get the witness to agree with the employer’s version of the story.
“Re-direct” is an opportunity for your Union lawyer to ask a few questions of the witness.
This is done to clarify things that came up in cross-examination.
The process (Direct, Cross and Re-direct) is repeated for each of the Union’s witnesses, until the Union closes its case.
Then the employer begins calling witnesses. The same process (Direct, Cross and Re-direct) takes places for each one of the employer witnesses in turn, until the employer closes its case.
Final arguments or final submissions will be presented once both parties provides all of their evidence.
At the end, each lawyer has a chance to summarize the evidence and use it in legal arguments. They often refer to case law (other similar arbitration cases) to convince the Arbitrator to decide the case in their favour.
This can be a difficult and frustrating process. This is particularly true if it is a time-sensitive case or if the worker has no income while the case is ongoing. Often justice delayed is justice denied: This means that sometimes it is in the best interests of the Grievor to agree to a settlement rather than get into a lengthy Hearing.
A settlement ensures a resolution that likely favours your case in some way. That resolution might be better than insisting on your “day in court,” which will take longer and you risk losing.
Each case is different and it’s important to talk to your Union lawyer about your case and your options.
The Grievance and Arbitration process is a fundamental resource for Unionized workers to rectify a violation of their collective agreement. Most grievances are settled without the need for a Hearing because of the cost and length of time required to go through the process. But, if you end up in a grievance that can’t be settled, Arbitration is the next step to resolution.
Read more blog posts from the Legal Team at UFCW Locals 175 & 633!
- The Importance of Documentation in Arbitration
- Working with Health Professionals to Protect Your Health & Job
- Off-Duty Conduct & Discipline
- Addictions in the Workplace
- and more!
*This article was also published on pages 8 & 9 of the March 2017 issue of Checkout magazine.