-1- NOTES TO A WITNESS AT AN ARBITRATION HEARING

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1 -1- NOTES TO A WITNESS AT AN ARBITRATION HEARING As a witness, you will be playing a very important role in the upcoming hearing. Through you, we present the facts that are essential to our case. Please take a few moments to read these notes. If you have any questions, feel free to contact your counsel to discuss them. INTRODUCTION An arbitration hearing is similar to a court hearing, but not as formal. The "Judge" is referred to as the Arbitrator. Sometimes there is a panel of three decision makers an arbitrator, the union s nominee and the employer s nominee. The other people present during an arbitration are representatives of the union, one or more representatives of the employer and counsel for the union and employer. As a witness, you will not be expected to use any special titles for anyone at the hearing. When answering questions, it is preferable that you avoid referring to the arbitrator or counsel for the other side by name. Lawyers may refer to each other as "friends". Your counsel may say when referring to counsel for the employer "my friend made such and such a statement". Don't imagine as others have that this means there is a special relationship between counsel. CONDUCT OF THE HEARING (i) Getting Started At the beginning of the hearing, there are often some preliminary steps. The Arbitrator may ask whether both parties agree that the procedure in the collective agreement has been followed to NelliganO BrienPayne 2004

2 allow the case to begin. Either side may have preliminary motions at this time. -2- Usually one or the other party will bring a motion to exclude witnesses. This will happen when the credibility of witnesses is in issue. If this happens and the arbitrator grants the request, the witness will have to leave the room and sit in the corridor waiting to be called. The grievor is always entitled to remain and watch the arbitration. The only other exception is that one advisor for the union and one advisor for the employer can stay in the room even if they will be called as witnesses. Anyone except a party to the case should bring a book or some other way to pass what might be a very long and boring day. The whole purpose of an exclusion order is that witnesses will not hear the witnesses' evidence before giving their own evidence. If an exclusion order is made, you are not allowed to discuss any evidence with any other witnesses nor are they permitted to discuss their evidence with you. It is very important to not be present in a hearing room if an exclusion order has been made. If you are present when you are not supposed to be, some or all of your evidence may not be received. (ii) The Evidence Once the preliminary matters have been disposed of, the parties put in their evidence. In a case involving the interpretation of a collective agreement, the burden of proof is on the grievor and so the grievor's counsel will put in all his or her evidence first. In a discipline or discharge case, the reverse is true and the employer's counsel goes first. Counsel puts in evidence by asking questions of witnesses. Counsel who calls a witness asks that witness questions first. This is called the examination-in-chief. During the examination-in-chief, counsel who called the witness cannot ask leading questions in contentious matters. A leading question is one that suggests the answer. Any questions that can be answered by a yes or a no is a leading question. As a result, your counsel will ask you general questions. It may be difficult to understand what type of answer is expected. In nearly all cases, however, you will have reviewed your evidence with your counsel in detail before the hearing. If there is something that you do not understand, don't be afraid to say so. After the examination-in-chief is completed, counsel for the other side may cross-examine. A good cross-examination will consist of nothing but leading questions. The purpose of crossexamination may be to attack the credibility of a witness or to get information that would be helpful to

3 -3- the other side's case. As a result, do not agree to suggestions made by the other counsel during the cross-examination without thinking about them. If the other counsel's statement is correct, however, admit it. If it is partially correct, say that you only agree with part of it. After cross-examination, your counsel may ask questions in reply. The only purpose for such an examination is to clear up any new matters raised during the cross-examination. Once the questions in reply are finished, the Board may have some questions for you. Another way to put in evidence in the case is through documents. Normally a witness will have to identify a document. Both sides can also agree in advance that they will be received as evidence without the need for formal proof. Once the evidence for one side is finished, the other side will present its evidence in the same way. Finally, the party who started the case will have an opportunity to present reply evidence. This evidence can only respond to something new that came up during the other side's case. A party can't put in evidence that was simply forgotten without permission from the Arbitrator. (iii) Completing the Case After all of the evidence is in, counsel can present their final argument. The order of arguing follows the order of the evidence. For example, in a case involving the interpretation of a collective agreement, counsel for the union will start, counsel for the employer will respond and the union representative will have the last word. Normally an arbitrator will not give a decision on the day of the hearing. The arbitrator will usually send the decision to the parties in the following weeks or months.

4 -4- HELPFUL HINTS IN RESPONDING TO QUESTIONS 1. Tell the truth (all of it). 2. Don't discuss what you or your counsel plan to do in a case with anyone. It may get back to the other side. 3. If you took notes at the time that an incident happened, let your counsel know in advance. You may be permitted to look at them during the hearing to refresh your memory. Otherwise, you will have to testify without notes. 4. Answer only the questions asked. Do not volunteer extra information unless it is necessary so your answer will be properly understood or to tell the whole truth. This is true in both cross-examination and examination-in-chief. It is very important to wait for your own counsel to ask the questions to bring out your side of the story. Nothing sounds worse than a grievor who goes through the whole defence every time she is asked a question. 5. Speak up and speak slowly enough for the arbitrator to take notes. A good trick is to keep an eye on the Arbitrator's pen or to listen for typing on a laptop to end, to make sure you're not speaking too quickly. Pause now and then to let the Arbitrator catch up. 6. Direct your answer to the person who asked the question. 7. Do not be afraid to say you did not understand a question or did not hear it. In this case say, "Would you please repeat the question" or "Would you please rephrase that question", whichever is appropriate. 8. If you are certain about an answer use language that lets the arbitrator know you are, do not start your response with "If I recall correctly" or "I m pretty sure that...". 9. If you think you know the answer but are not absolutely sure, then qualify your answer before starting it - for example, "I am not sure but I believe that..."

5 If you do not remember something or do not know the answer to the question, admit it at once. Don't guess at an answer. 11. Answer every question that is asked unless your counsel objects. If someone objects, don't respond until the arbitrator tells you to do so. 12. Do not ever ask counsel if you have to answer a question or if you can discuss the question before answering. This may give the appearance that you are afraid of an answer or trying to avoid telling the whole truth. 13. Do not look at your counsel for guidance while you are being asked questions by the other side. You may speak to your own counsel during a break while the examination-in-chief is in progress. You may not speak to your counsel while cross-examination is in progress. 14. If you make a mistake in your evidence in chief or cross-examination, admit to it as soon as you realize it. Do not try to cover up for fear that the arbitrator will think that you have a bad memory or are dishonest. If you finish your evidence and realize you have made a mistake, let your counsel know at once. 15. Do not be argumentative with the arbitrator or other counsel. It is not your job to point out to the opposing counsel that a question is stupid or that you have already answered the question three times. Try not to let yourself be angered by other counsel. Some lawyers will try to provoke a witness into saying things in anger. 16. Do not answer a question with a question. Do not repeat the question. If you need it repeated, ask counsel to do so 17. Do not worry about the fact that you feel nervous about giving evidence. Everyone who has ever given evidence has felt the same way. Within a few minutes, the "stage fright" goes. You may even find that you really enjoy the whole experience!