Worker Status Pending Arbitration.

• Author: Bowal, Peter
• Position: EMPLOYMENT / Worker Status Pending Arbitration

Unionized employees terminated for cause from their jobs can--and often do--ask their unions to grieve the termination. A termination for cause means the employer has grounds (cause) to terminate the employee. This is different from a termination without cause.

After filing the grievance, an arbitration process tests the grounds (cause) for termination. The Collective Agreement in force usually sets out the number of arbitrators, timelines, opportunity for mediation, exchange of documents and other procedures the arbitration will follow.

Every arbitration is different. But today it still looks much like regular civil litigation in the courts and generally takes a lot of time to complete. Few arbitrations wrap up within a year of the termination. The arbitration can even take several years to complete where there is more than one arbitrator, procedural wrangling or a long indulgence to write the decision.

So, is the fired worker still an employee after the termination until the end of arbitration?

We will call this limbo period the "interregnum".

Why is Interregnum Status Essential to Know?

Everyone wants to know what personal status they hold, as a matter of identity. We want to know whether we are a citizen, a manager, a member, a parent, a party to a lawsuit, a spouse or an employee.

Employment is a formal legal status. Many laws confer rights and benefits based on this status alone. For example, treatment under some legislation--such as employment insurance, taxation, human rights, employment standards, occupational health and safety, health care, privacy and workers' compensation--depends on employment status.

Common law and contractual rights and obligations are also impacted. Is one bound by post-employment obligations such as desisting from competition, solicitation and employer disparagement? Can one claim the corporate pension and other group benefits during the interregnum?

If a subordinate asks you for a reference, can you state in that reference that you are still employed at the same organization with the same job title? When someone asks you socially what you are doing, is it honest to say that you are employed? If you apply for another job during the interregnum, can you accurately represent that you are currently employed in that job (despite having been terminated)?

The employer also needs to know your status during the interregnum as it will want to keep its records current. A significant suite of rights and obligations...