Employers of unionized employees are likely already aware that discussions held during the grievance process between management and union officials are privileged; that is, the nature and content of those discussions will not be admitted into evidence at a subsequent arbitration hearing without consent of both parties. The reason for the privilege is to encourage open discussion in an effort to settle disputes. The concern is that the possibility of later disclosure of grievance process discussions to an arbitrator will curtail or inhibit such discussions.
There are, however, a number of exceptions to grievance process privilege. What may be evident is that any reply by the Employer to a grievance, whether written or oral, that arises out of a grievance process is admissible at arbitration and is one of the primary exceptions to the grievance procedure privilege. Other exceptions exist where, for example, the behavior of the employer during the grievance procedure is the subject of a grievance. Evidence concerning that behavior will be admissible.
What employers of unionized workers may not know is that there is an exception to grievance procedure privilege where the issue under discussion is the Employer’s accommodation of the grievor as required under Human Rights legislation. Such discussions during the grievance process are admissible at a subsequent arbitration hearing as an exception to the privilege.
One of the leading decisions in relation to this exception is Dominion Colour Corp. (1999), 83 L.A.C. (4th) 330 where Arbitrator Ellis explained the exception, stating:
305 … The statutory duty to accommodate is an ongoing duty. It did not disappear when the grievance was filed. … the company's potential accommodation liabilities under the Code cannot be said to have finally crystallized when the lay off occurred and the grievance was filed.
306 In my opinion, in actual Code proceedings, the privilege attaching to grievance-procedure communications would not be allowed to stand in the way of a board of inquiry learning of accommodation offers made by the employer after a grievance had been filed. Since I am effectively being asked to assume the role of such a board, it follows, in my opinion, that it would be inappropriate to allow that privilege to prevent me from learning of the same offers. To put it another way, the employer in these proceedings is being asked to defend itself against allegations of breach of a statutory duty and, in my view, it would not be "proper" …. to prevent it from making a full defence of those allegations by refusing to hear evidence of accommodation attempts simply because they formed part of a company response to a grievance about the breach of private rights arising under the collective agreement.
Later in his decision, Arbitrator Ellis stated:
309 The need for an exception to the privilege rule in these circumstances appears to be an inevitable consequence of the intermingling, in a grievance arbitration, of the jurisdiction to enforce the collective agreement with the jurisdiction to enforce the Human Rights Code.
310 I am also of the opinion that proceedings in this case, where accommodation is, obviously, a predominant theme, would be artificially constricted, to no useful purpose, were we to put ourselves in the position of having to studiously avoid any mention of accommodation efforts that happened to have occurred during the grievance procedure.
Lessons for Employers Employers should have a good understanding of what exceptions exist in relation to grievance process privilege and need to be aware when they enter into discussions during the grievance process what will and will not be admissible in any subsequent arbitration hearing.
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