The law is well-established that an arbitrator has no jurisdiction to hear grievances predating a collective agreement.
A recent illustration is found in the preliminary decision of arbitrator Dana Randall in OPSEU, Local 684 v Canadian Mental Health Association. That decision addressed the employer's motion that two grievances were inarbitrable because their subject matter predated the parties' first collective agreement.
The uncontested facts were that on September 14, 2014 the parties entered into Minutes of Settlement for their first collective agreement. The term of said collective agreement was October 10, 2014 to October 9, 2016.
The grievor alleged that he had been improperly situated on the pay grid and that the employer had not provided the grievor with benefits under its plan. Specifically, the grievor took the position that:
- his pay grid increase should have been effective August 22, 2012, notwithstanding that the parties agreed in the Minutes of Settlement that step increase were to take place effective October 10, 2014; and
- he should have been provided benefits for a period predating the collective agreement even though the employer's policy of excluding from its plan employee's, like the grievor, whose spouses had benefit coverage was in force until October 10, 2014.
Arbitrator Randall dismissed both grievances because he found that he was without jurisdiction to hear them. In his reasons, Arbitrator Randall affirmed the general proposition that grievances arising before a collective agreement comes into effect are inarbitrable under that collective agreement.
Arbitrator Randall carefully distinguished the circumstances before him from those where an arbitrator might take jurisdiction, such as where grievances arose, not before there being a collective agreement at all, but rather under a previous collective agreement between the same parties.
The take-away for employers is to scrutinize the date on which the subject matter of a grievance is alleged to arisen. Should that date be before the effective date of the first collective agreement between the parties, the grievance is inarbitrable and the employer should move to have it dismissed on that basis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
