A recent BC arbitration revisits the issue of when a previous settlement can render a grievance inarbitrable.

The grievance raised allegations of personal harassment on behalf of two grievors. The union alleged that the employer violated the parties’ collective agreement by paying the legal fees of another union member who threatened legal action against the grievors.

The employer objected to the arbitrability of the grievance on three grounds, one of which was that the issues raised in the grievance were, in substance, the same as the issues raised in an earlier grievance filed by the union regarding the employer’s payment of the legal fees. It argued that the earlier grievance was settled by duly authorized representatives of the employer and the union, and that it was an abuse of process for the union, having settled the earlier grievance, to seek to resurrect it under a different guise.

The arbitrator dismissed the grievance as inarbitrable, accepting the employer’s argument that the grievances were the same in substance since they were founded upon the same incident, even though the grievance forms referred to different articles in the collective agreement and sought distinct forms of relief. A factor critical to the arbitrator’s decision was that the first grievance was concluded through a settlement of “all issues” pertaining to the payment of the legal fees, and not through an award that did not determine the harassment issue.

Kwantlen Polytechnic University -and- Kwantlen Faculty Association, September 27, 2012