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The Newfoundland and Labrador Court of Appeal considered this in Newfoundland and Labrador Association of Public and Private Employees v. Canada.  In this case the arbitrator decided that a grievance that stated that it related to ?suspension? of an employee,  could, nonetheless, be interpreted to include the termination of the employee.  The arbitrator decided that, in the event that he was wrong, the employer had, in any event, waived its right to object to the defect in the statement of the grievance.

Grievances are not drafted by lawyers and a certain amount of latitude has generally been given to unions when they file their grievances.  That being said, the latitude is not unlimited.  In this case, the grievance simply provided that "Article 13.01 ?B?.  ?Suspension With-out Just Cause?".

The Trial Division concluded that the arbitration award be set aside " insofar as it refers to termination of the Grievor?s employment". 

The Court of Appeal held that the "standard of review that should have been applied to the arbitrator?s decision is reasonableness regarding the scope of the arbitration and correctness regarding waiver."  With respect to the scope of the grievance, the Court concluded:

The Court of Appeal disagreed with the Trial Division and held that the arbitrator had acted reasonably in defining the scope of the grievance as he did and in the approach he had taken (looking at the context and the surrounding circumstances) in doing so. 

Although the court agreed with the trial judge to the effect that the arbitrator had applied the wrong test regarding waiver, it was unnecessary for the court to consider that and its effect given its conclusion that the trial judge had properly defined the scope of the grievance.

What does this mean?  I suppose that an employer should not leave the matter to chance.  If it has concerns regarding the scope of the grievance it should raise its question at the earliest opportunity.  The case is an affirmation of the general belied that substance will override the form.

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