The Importance of Documentation in Arbitrations

November 10, 2017 at 2:30pm

What do Donald Trump’s private meetings with former FBI Director James Comey have to do with Labour Arbitration?

They demonstrate the importance of keeping a detailed record of events.

In June 2017, James Comey explained in a Senate Hearing why he took such careful notes after his meetings with the President. He said: “I was honestly concerned that he might lie about the nature of our meeting and so I thought it really important to document.”

Lying is just one concern when dealing with recollection of events. Memories can fade or change with time, and individuals can have different perspectives on the same event.

When a grievance goes before an Arbitrator and there are conflicting versions of what happened, the Arbitrator must determine which version of events is most credible. Of course, an Arbitrator will keep an eye out for the telltale signs of lying. But, in reality, Arbitrators concern themselves mostly with the story being told and its probability, and the evidence to support both.

In the case of Faryna v. Chorny, Arbitrator, Justice O’Halloran explained why this is the case:

“If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box.”

While an Arbitrator will certainly take a witness’ demeanor into account, he or she is much more concerned about the clarity, consistency and plausibility of the witnesses’ testimony.

This is why documentation is so important. Arbitrators know that memories fade over time. Therefore, notes taken soon after the incident can be very compelling. In addition, notes help ensure that when it is time to testify, you have a coherent recollection of the events.

If anything out of the ordinary occurs at work, it’s important that you take notes as soon as possible. You should include details of the incident, the time it occurred, who was there, and what was said.

Additionally, make sure that you keep copies of any communication (email, letter, text) that are relevant to the incident. Take notes on the contents of any related phone conversations as well.

Finally, make sure you save any documents that could be relevant to the incident. Depending on the nature of the issue, this could include pay stubs, attendance records, or any number of other documents.

Cases are built on evidence. The more reliable the evidence and testimony you have on your side, the better your case will be. Many incidents never require a hearing in front of an Arbitrator. But you’ll be glad that you kept proper records if one ever does.

Full Hearing transcript available here.

Read about what to expect at your First Arbitration

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