A union filed a grievance on behalf of an employee who was terminated for alleged misconduct. The employer subsequently sent a letter headed "without prejudice" to the union offering to settle the grievance by reinstating the employee with a 10 day suspension. The union declined the employer's offer and the matter is proceeding to an arbitration hearing. In this situation, which of the following is correct:
A) The employer is required to inform the arbitrator of the offer to settle the grievance.
B) The arbitrator can consider the employer's offer to reinstate the employee when determining the appropriate penalty.
C) The employer's offer to settle in the letter cannot be referred to at the arbitration hearing.
D) The burden of proof shifts to the union.
E) The employer will be awarded costs if the arbitrator upholds the termination.

Question

Quizplus · Accepted Answer

The use of "without prejudice" in the employer's offer to settle means that the offer is made in the context of attempting to resolve the dispute out of court (or arbitration in this case) and cannot be used as evidence or referred to during the arbitration hearing. This is to encourage parties to negotiate and settle disputes without fear that their offers will be used against them later.

A Union Filed a Grievance on Behalf of an Employee