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Labor & Employment Law

: Thoughts from a Management Lawyer

Adjournment of Arbitration when Criminal Case is Pending

By Michael Fitzgibbon

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Where an employee is terminated or disciplined as a result of certain alleged conduct and criminal charges are pending and arise out of the same alleged conduct, the Union and the grievor will often be faced with a situation where they will be at arbitration on the discipline before the employee gets to court on the criminal charge.

Where this happens, the Union will typically seek the adjournment of the arbitration hearing pending completion of the criminal trial. This was most recently done in Toronto Police Services Board v. Toronto Police Association.

Granting an adjournment is discretionary. In the context of overlapping criminal proceeding, the matter becomes more complex as the arbitrator observed:

Since the decision of the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, the labour relations community has been made aware that a conviction in a criminal court for actions which form the basis for a decision to discharge or discipline cannot be re litigated at arbitration. Therefore, a finding of guilt can obviate the necessity of calling evidence about the actions that gave rise to the discharge. This may not completely dispose of a grievance because an arbitrator still retains the authority to substitute a different result if discharge was inappropriate in all the circumstances. However, a finding of guilt does bring with it a potential of a shortened and more focused arbitration hearing.

This is a "positive". On the negative side, is that the delay resulting from the granting of the adjournment may have the effect of escalating damages. However, as in the Toronto Police Association case, the Union waived any claim for such damages beyond the date when the arbitration hearing would have ended and took the wind out of the sails of the employer's argument.

The adjournment was granted in this case on terms.

Full post as published by Thoughts from a Management Lawyer on April 12, 2009 (boomark / email).