'Outrageous' arbitrator delay leaves employee waiting for back pay

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A Toronto labour-arbitration case has become “notorious” as the arbitrator deciding the case has kept a reinstated city employee on the hook waiting to see if he’s entitled to five years of back pay.

Earlier this week, the Toronto Star covered the case of city employee Ajay Misra who was reinstated after a wrongful dismissal but can’t claim years of back pay because the arbitrator hearing the case has taken longer than the 30 days legally required to release her decision.

How long? Try nearly two-and-a-half years.

“This really is an extreme case,” says labour lawyer Danny Kastner of Turnpenney Milne LLP.  “[It] was starting to become notorious within the labour relations community. “

The arbitrator has said her delay is due to the complexity of the case but Kastner says that “regardless of the level of complexity, the amount of time it’s taken has really been beyond the pale.”

Kastner acknowledges the case is “an outlier,” but says the absence of effective oversight allows little recourse for parties left waiting for a delayed decision. Misra and his union are launching a judicial review of the case, but Kastner says that one option is fraught with its own challenges.

“It’s not an easy process,” he adds. “[It] has its own inherent delay and it’s one that the parties would choose only as a last resort, as they have in this case. I wouldn’t consider it an effective oversight mechanism."

He says a court may ultimately rule that a decision is too slow in coming and order the aribitrator to speed things up, "but by that time, so much damage has been done to the credibility of the arbitrator and that decision that there’s a real likelihood that those parties are going to dispute the [decision].”

The primary motivator for arbitrators is basically reputation, insists Kastner.

“Arbitrators, unlike judges, rely on being appointed by the parties themselves who are going to be arguing cases before them,” he explains. “So they have a very serious vested interest in not jeopardizing the relationships with those parties and for that reason alone there’s a natural discipline that creeps in. Arbitrators who want to continue to get work are going to avoid frustrating the parties by delaying decisions to this degree.”

Kastner points out that the problem isn’t confined to arbitrators, and that judges can often be maddeningly slow in releasing their decisions.

“It’s an outrageous case,” he says. “I’d say in general that with adjudicators, arbitrators, judges and so on, there should be a better oversight mechanism about the length of time [they] take to release their decision.”

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