The Sympathetic Grievant
And A Note About Canada
I got a question from a management-side lawyer I know in Canada, but before I turn to her question, I thought I’d share some facts I know about labor arbitration in our neighboring nation. Actually, I guess I should say: facts about labour arbitration in our neighbouring nation.
First of all, most of their arbitrations are done by lawyers and it’s rare for non-lawyers to advocate in a hearing. Those lawyers actually wear robes! And maybe wigs? I’m a little unclear on that point. In most places, hearings are held in a designated neutral location rather than one party’s office of facility. A fellow arbitrator from Toronto told me that they have a floor in a downtown office building that has conference rooms for hearings, lots of break-out rooms, and a lounge where the arbitrators hang out together. At the same time, the parties work on settlement, because many cases settle on the day of the hearing. Almost all written decisions in Canada get published, because it’s required by law, so it’s very easy for parties to learn about the arbitrator’s decision-making, and for people to follow trends in arbitration. Finally, they don’t call employees who have a grievance “the Grievant”; they call them “the Grievor.” And that’s how it’s spelled - not with a “u” in it.
Back to my colleague’s question. She expressed frustration with arbitrators who reinstate an employee who engaged in misconduct but for whom the arbitrator felt sympathy. She said this happens to her sometimes when the grievor is the sole bread winner or a long-time employee but not THAT long or (in her mind) just a woeful sad-sack who has thrown himself on the mercy of the arbitrator. She wanted to understand why arbitrators do this when an employee has so clearly violated the rules and should not be returned to work.
My first reaction was that arbitrators usually consider mitigating factors. Mitigating factors are those that reduce or lessen the severity of the facts or the discipline. Common mitigating factors include years of service or a grievant who shows genuine remorse and apologizes for their misconduct.
Many arbitrators, including me, will only use years of service as mitigation if the employee has been there a long time, like more than 20 or 25 years. But a long tenure can cut the other way. If you’ve been there a long time, I assume you know better not to do certain things. I had a case recently where a long-time employee kept leaving his facility during his shift to go work out at Planet Fitness. He argued that there wasn’t always work to do so he shouldn’t have to wait around for the work to show up. That argument did not fly; I upheld his termination.
As for remorse, the sooner an employee expresses remorse, apologizes, or takes responsibility for their misconduct, the more genuine it will seem to an arbitrator. For example, an employee apologizes before he’s disciplined when he reports the misconduct himself. That person is far more believable than the person who apologizes for the first time when she’s on the witness stand at the hearing. If the arbitrator finds a grievant to be sincere and it’s a first offense (for example), they will feel more comfortable putting that person back to work in hopes that the misconduct will not re-occur.
My advice for the frustrated management counsel: anticipate the way that the grievant will be perceived by the arbitrator, anticipate the mitigating factors the union might raise, and then address those issues head-on in your opening statement. Sample remarks:
Jeff has been a loyal employee for 23 years, so obviously, our client took these allegations very seriously. It was only after weighing his years of service that we decided discharge was the only course of action.
We appreciate that Jeff has had some hardships over the past few years and is responsible for the care of a disabled parent. Unfortunately, he put that in jeopardy by engaging in the misconduct before you today.
The first example lets the arbitrator know the employer has already considered the mitigating factors and that they should not be relied on again to lower discipline. In the second instance, the employer is reminding the arbitrator that the employee is responsible for their termination, not the employer.
Finally, if you suspect that the arbitrator might feel sympathetic to the grievant, call it out in the opening statement. “You will likely feel sympathy for Mr. Jeffrey. I’d ask you to set aside your sympathies and consider the facts. The employer simply cannot have employees who . . .” If an arbitrator becomes aware of their bias (here, in favor of a person), they are more likely to evaluate whether their decision is being made for that reason.
Lest I be seen as giving advice only to the employer in this column, I would offer the following to the union: the grievant should take responsibility for their part as soon as reasonably possible, and that accountability should be as sincere as possible. No “I’m sorry I got caught” or “I’m sorry you got mad.” The sincere apology at the Step 1 hearing that goes unheeded by the employer is more sympathetic to the arbitrator than the half-assed apology at the hearing.
The employer and the arbitrator want to know what will happen if the employee gets reinstated. For example, let’s say Jeff is being terminated for attendance issues which he says are related to caring for his elderly parent. Jeff needs to be able to answer the employer’s argument that he will continue to be absent because of this circumstance. Maybe Jeff can say that he has hired an in-home support person or that his sister has moved in to help. Address the underlying issue to blunt the employer’s legitimate argument.
The union shouldn’t hesitate to mention the extenuating circumstances that will foster the sympathy of the arbitrator. If you raise the facts in your opening, be sure to include them in the facts, though, because the opening statement is not testimony and it is not evidence. You will need to have the grievant testify, or better yet, elicit the evidence from someone else. Finally, be sure to show that the employee has the support of his co-workers and the union. When only the lawyer shows up and the union rep doesn’t, that sends a message that the union might not care whether they win or not. If a shop steward can come too, her presence signals that the folks back in the workplace miss this lovable jerk, and want him back.