Can a union withdraw a grievance filed under a collective agreement without prejudice to any matter? In other words, can the union withdraw the grievance and then file another grievance of an identical nature in future without consequence? Can the grievor file an application under a statute relating to the events giving rise to the withdrawn grievance?
The issue was considered in Albright Gardens and ONA (2015), 122 C.L.A.S. 74 (McNamee). After the employer closed its case, and the union advised that it was not calling evidence, the arbitrator adjourned the hearing to allow the parties to make written submissions. In lieu of written submissions, the union wrote to the arbitrator advising, in part:
I write to inform you and your client that ONA is withdrawing the above-noted Grievance without prejudice or precedent to either party’s legal position on the interpretation of the collective agreement. I note that ONA has provided an estoppel notice to the Employer with respect to ONA’s intention to rely on the strict wording of Article 12.02. I further note that ONA may be addressing this issue in the upcoming round of bargaining between the Parties.
No surprise, the employer took the position that “it is too late for the union to withdraw the grievance, and that it should be dismissed. It submitted that the union ought not to be able to listen to the evidence in an arbitration, and then seek to withdraw without prejudice, retaining the right to re-submit the matter to arbitration.”
The arbitrator disagreed and concluded:
As I understand the thrust of arbitral jurisprudence with respect to this issue, I should not take it upon myself to dismiss a grievance when a party wishes to withdraw it from arbitration. Instead, I should leave it to any subsequent arbitrator or arbitration board to determine how any grievance, including the current grievance, which is placed before him, her or it should be disposed of. I concur with the results in those cases, and accordingly these proceeding are terminated without prejudice to any position that either of these parties might take in a subsequent arbitration.
There are many cases that deal with this issue. On the one hand I understand the reluctance to foreclose future proceedings. On the other hand, it would be nice, from a labour relations and cost perspective, to have some direction on the impact of the withdrawal on future proceedings.
The employer in the Albright case argued in the alternative, that the arbitrator:
… should issue a decision with respect to the withdrawal request, and provide some context as to what the matter was about and when the grievance was withdrawn. It says that a decision outlining the grievance, the facts and the stage in the process when ONA decided to withdraw would go a long way to prevent duplicitous litigation.
To some degree, the arbitrator did this.
The same arbitrator that decided the Albright case considered the issue even more recently in Peterborough County – City Health Unit v Ontario Public Service Employees’ Union, Local 327, 2015 CanLII 19723 (ON LA).
Two days before what would have been the fourth day of hearing, the union sought to withdraw the grievance on a “without prejudice” basis. The employer argued that the grievance should be dismissed on the merits, or that any withdrawal be “with prejudice”. In correspondence with union counsel, the employer requested that the Union “pick up” the cancelation fees associated with the cancelled hearing date. The union declined this request and pointed to the language in the collective agreement that provided that the cost of arbitration was to be shared equally between the union and employer.
The arbitrator set out the details of the withdrawal and terminated the proceedings “without prejudice to any position that any of these parties might take in a subsequent arbitration”.
Perhaps the result would have been different had the arbitrator heard sufficient evidence upon which to make a decision on the merits. There would seem to be some support for that proposition. That being said, there is a growing body of case law supporting that a withdrawal of a grievance is without prejudice to any position that make in any subsequent arbitration regarding the effect of the withdrawal.
One wonders whether employers would be wise to table proposals during collective bargaining that where a grievance is withdrawn, other than by reason of a settlement or perhaps reasons beyond the reasonable control of the union, after an arbitration hearing has commenced or been scheduled that the union will bear the costs of the cancelled hearing? I obviously don’t think this will get any traction, but these cases do require consideration of the issue.
The issue was most recently considered in Kawartha-Haliburton Children’s Aid Society v Ontario Public Service Employees Union Local 334, 2019 CanLII 59147. The grievance was filed in November 2018, alleging a breach of the collective agreement, the Human Rights Code and the Occupational Health and Safety Act.
After the first hearing day and before the second scheduled date, the union withdrew the grievance. Specifically, on May 9, 2019, the union wrote to advise that “without prejudice to any other matter and without precedent, the Union is withdrawing the above-noted and attached grievance of November 13, 2019 on behalf of Krista Knerr.” About two (2) weeks later the employee (grievor) through her counsel “filed an application with the Human Rights Tribunal of Ontario raising some or all of the same issues raised by the grievance.” The employer received this application on June 18, 2019.
A conference call was arranged with the arbitrator to decide whether the withdrawal of the grievance should be considered “without prejudice,” or whether the grievance should be dismissed “with prejudice.” This was important because if the withdrawal was “with prejudice” to any matter involving the grievor, the employer would raise this to attempt to block the employee’s application before the Human Rights Tribunal of Ontario.
The employer argued that, “the undisputed facts point to an abuse of process by the grievor, warranting a dismissal of the grievance with prejudice or as an abuse of process, or that the grievance be deemed to be withdrawn with prejudice”.
The union argued that the arbitrator had “no jurisdiction to declare the withdrawal “with prejudice” to a proceeding before another tribunal. It asks me to end the proceeding because of the withdrawal without ruling on whether it was with or without prejudice.”
The arbitrator considered the matter and reached the following conclusion:
Any party is free to withdraw a grievance at any time. For a grievance to be withdrawn “without prejudice,” both parties’ agreement may be required. Here, the parties have agreed the grievance is withdrawn without prejudice to matters involving employees other than the grievor. It has long been accepted that, subject to exceptional circumstances, an arbitrator will not hear a grievance that has been withdrawn and later filed again. (See Re City of Sudbury and CUPE Local 207 (1965) 15 L.A.C. 405 (Reville).) In that sense, the withdrawal of this grievance is “with prejudice” to this grievor’s ability to pursue the same grievance in the future.
It is understandable that the employer is upset that it has devoted time and resources to defending this grievance, only to have it withdrawn in favour of a human rights application. However, it is up to the Human Rights Tribunal to determine its disposition of her application to that tribunal. The employer is free to argue at the tribunal that there has been an abuse of process. Its request for a ruling on that point from me is dismissed.
However, the matter before me is dismissed with prejudice to the grievor’s right to grieve the termination of her employment under the collective agreement.
The arbitrator left it to the HRTO to determine the impact, if any, of the withdrawal of the grievance on the employee’s human rights application. This seems consistent with the bulk of the authorities on the point.