This decision illustrates the complexities in arbitrating a termination grievance when the grievor faces criminal charges related to the same alleged misconduct.
The Grievor was accused of sexual misconduct, leading to his termination and criminal charges. The Union grieved the termination and asked to adjourn the arbitration until after the criminal trial. The arbitrator, weighing the benefits and drawbacks of an adjournment, rejected the Union’s request. To offset possible problems, such as prejudice to the Grievor’s criminal trial or inconsistent decisions, the arbitrator committed to releasing his decision after the expected conclusion of the criminal trial.
The alleged misconduct included sexual harassment and unwanted sexual contact of a co-worker. The Union grieved the dismissal as without just cause. At some point, the Grievor was charged with sexual assault in relation to the same workplace events. He asked the Union to postpone the arbitration because he was concerned it could negatively affect his criminal trial.
The Employer objected to adjournment, arguing the matters were separate as the termination was based on breaches of AHS policies, not criminal charges. Further, the trial could be delayed, witnesses’ memories could fade, and the Employer’s potential financial liability would continue to accrue. To address the last concern, the Grievor and Union agreed to not seek compensation beyond the dates of the original arbitration.
In determining whether to exercise discretion to grant an adjournment, Arbitrator Casey noted the arbitrator’s duty to accept a criminal finding, per Toronto (City) v CUPE, Local 79, 2003 SCC 63. However, he added that there is no bar to arbitration and a criminal trial running concurrently. Casey pointed out that some arbitrators will adjourn due to a criminal trial only if there are exceptional circumstances. Finding it unnecessary and inappropriate to require “exceptional circumstances”, Casey weighed relevant factors to decide whether the advantages of an adjournment outweighed the disadvantages.
Arbitrator Casey determined these factors were relevant in this case:
1) expeditious results in the arbitration process
2) efficiency of resources
3) accruing liability for the employer
4) possible prejudice in the criminal trial if the arbitration proceeds
5) possible prejudice to the arbitration process
6) impact of a finding of guilt or innocence in a criminal trial; and
7) potential of inconsistent decisions.
In denying adjournment, a major factor was possible prejudice to the arbitration process. There were likely only two witnesses – the Grievor and the Complainant – making for a “he said/she said” situation. A delay could impact memories and the arbitrator’s ability to assess credibility.
Closing the door to an adjournment, Arbitrator Casey opened a different door. He determined he will not issue his decision until after the trial is expected to conclude. At that time, he will ask the parties how the trial outcome impacts the arbitration process. If the trial has not concluded, the arbitrator will hear submissions on whether to issue his decision or continue to wait for the results of the criminal trial.
Alberta Health Services v Health Sciences Association of Alberta, 2026 CanLII 85344 (AB GAA) (Casey)