Status of Fired Faculty Members Pending Arbitration

April 2023


Under Collective Agreements in effect at universities and colleges across Canada, the academic faculty member invariably has the right to appeal (grieve) job discipline from counselling letters all the way to termination. These grievances can be resolved at any of the traditional four “steps”. Reaching and resolving the final step of arbitration, which characterizes hotly contested employer terminations of faculty members, can consume a few eternities.

This is an adversarial process. The parties often disagree on the choice of arbitrator or the critical neutral Chair in a three-person panel. The next available two consecutive week opening in the schedules of all arbitrators, parties and their lawyers, not to mention all the witnesses, today pushes the start of the dismissal grievance arbitration out at least one year. Moreover, it is usually to the institution’s baleful advantage to delay the arbitration to exert maximum social, economic and professional pressure on the deposed and increasingly desperate unemployed faculty member to settle the arbitration on its terms. Faculty members often work in labs or with teams. They have research and teaching grants, ongoing research projects, graduate students and editorial duties at journals. All of this is severely disrupted by the loss of one’s academic post, for one loses a campus office and access to files and communication networks which reside on institutional servers.

After the arbitration hearings have been completed, the decision may not be drafted and rendered for another agonizingly long time, even up to a few years in some instances. Then there may be further procedural matters and judicial review, which prolong final resolution.

Therefore, one of the first questions a fired faculty member encounters is: what is my legal status while the resolution of my grievance is pending? This article addresses that critical issue.


A faculty member can be suspended for an administrative reason, such as to “stand down” the professor and preserve the status quo while allowing the institution to conduct a full, objective investigation of some serious allegation. The rules around imposing these non-punitive suspensions are set out in the governing Collective Agreement. They are usually “with pay” and short-term time- or task-limited. The institution is generally granted prerogative and a wide berth in declaring these suspensions. I have seen them abused in a variety of ways by angry administrators interested in dispatching a power signal. Since this is action which could have a punitive effect on faculty members, it is grievable as a form of unwarranted discipline. Unfortunately, few academic unions are inclined to challenge their institution on this basis and any grievance against an administrative suspension would rarely be executed on a timely basis.

A faculty member can be suspended without pay after due process as a form of discipline. This is a management option short of termination. Collective Agreements differ on whether the suspension is stayed once a grievance against it is filed. Staying the suspension makes the most sense, but there are shameful examples at some institutions where long punitive suspensions without pay are served and the arbitration as to whether it was a justified punishment at all has not been heard or even scheduled several years later. Faculty Associations which agree to such absurd terms fail their membership.


Unionized faculty members terminated for cause from their jobs customarily ask their unions to grieve the termination. A termination for cause means the employer asserts sufficient grounds or reasons (cause) to terminate the employee. Misconduct by way of some kind of harassment or non-compliance with some policy diktat is the most frequent cause advanced today. This is different from a termination without cause, which alleges no wrongdoing and is non-culpable.

After filing the grievance, the long arbitration process tests the sufficiency of the factual cause invoked to justify the termination. The Collective Agreement in place usually sets out the number of arbitrators, timelines, opportunity for mediation, exchange of documents and other procedures the arbitration will follow.

Every arbitration is different. But today arbitration still looks much like regular snail speed, procedure-bound, court-like civil litigation. Few arbitrations start and wrap up quickly after the termination. The arbitration can take several years to complete where there is more than one arbitrator, robust procedural wrangling or a long indulgence to write the decision.

Is the fired faculty member still an employee after the termination until the arbitral award?

I call this limbo period the “interregnum” and one’s legal status during the interregnum is essential to know for several reasons.

Everyone wants to know what personal status they hold, as a matter of identity. We want to know whether we are a citizen, a manager, a member, a parent, a party to a lawsuit, a spouse or an employee.

Employment is a formal legal status. Many laws confer rights and benefits based on this status alone. For example, treatment under some legislation – such as employment insurance, taxation, human rights, employment standards, occupational health and safety, health care, privacy and workers’ compensation – depends on employment status.

Common law and contractual rights and obligations are also impacted. Is one bound by post-employment obligations such as desisting from competition, solicitation and employer disparagement? Can one claim the corporate pension and other group benefits during the interregnum?

If a subordinate requests a reference, can you state in that reference that you are still employed at the same organization with the same job title? When someone asks you socially what you are doing, is it honest to say that you are employed? If you apply for another job during the interregnum, can you accurately represent that you are currently employed in that job, despite having been terminated and pending arbitration?

The employer also needs to know your status during the interregnum as it will want to keep its records current. A significant suite of rights and obligations accompany the status of employment. Employers have a very limited legal relationship with ex-employees, and vice versa. Former employers do not continue to control terminated employees.

Individual Contract of Employment versus Collective Agreement

Approximately 70% of Canadian workers are non-unionized. Their legal status when terminated for cause is clear: they are no longer employees from the moment of termination. The employer’s termination decision is final and the worker has no right to review by an arbitrator.

The fired worker can still negotiate a settlement if the former employer is willing, as a way to avoid litigation and mutually end the matter. Frequently, fired employees, usually with the help of a lawyer, negotiate small paid notice periods and amendment of the reason for termination (to resignation or lay off).

Or the fired worker may sue for wrongful dismissal to challenge the factual grounds for cause. If the worker wins in court (sometimes years after the firing), the judge usually orders compensatory damages (money). The legal remedy of reinstatement is rare outside of unionized environments. In any event, the firing completely severs employments not governed by a Collective Agreement.

The question posed by this article, of employee status during the interregnum, therefore, only presents itself in a unionized workplace.

Determination Based on Collective Agreement and Facts

Universities and colleges are unionized by legislative mandate in all Canadian provinces. The first place to turn is the language of the Collective Agreement in effect on campus that covers faculty members. What does it say, if anything, about the worker’s interregnum status?

Unlike with unpaid suspensions, terminations generally are not stayed pending the outcome of grievance arbitration. Terminations take effect immediately and are eventually overturned or affirmed by the arbitral decision. The Collective Agreement will define the interregnum. The Collective Agreement on most campuses will fall into line with most non-unionized workplaces; namely, that the fired faculty member is not an employee and enjoys no employed status (such as benefits or access) beyond rights of process conferred by the Collective Agreement to prosecute a grievance.

A few faculty unions will have negotiated employment status and usually a limited period of full compensation and benefits that used to roughly equate to a reasonable length of time to complete the arbitration. A sample Collective Agreement reads as follows:

Where an Arbitration Board has been established, the staff member shall retain his or her appointment and the applicable salary and benefits unless and until the earlier of [emphasis added]:

  1. the Arbitration Board determines that the staff member be dismissed and the Board of Directors act upon such decision, and

  2. one year following the termination decision.

Several observations flow from this provision. There is a short break in employment between the termination and establishing the arbitration board, although that period would likely not exceed a few months. Not only does the fired faculty member remain an employee for the lesser of a year or until the arbitration decision is rendered, but that fired academic also receives full pay and benefits throughout that time. In Collective Agreements that favour employees, pay and benefits sometimes continue until the arbitral decision has been issued.

The word “benefits” needs clarification. To what benefits does it refer? Can the employing institution withhold any benefits? The language above sets no restrictions and a reasonable interpretation would embrace all benefits the faculty member previously enjoyed (such as general pay raises, expense allowances, career development opportunities and access to software and an office). In practice, since this is disciplinary action after all, only financial payroll benefits are extended.

If the job continues through the interregnum, pay and benefits should naturally follow, even without explicitly saying they do. This is why Collective Agreements also generally say that the employer can suspend (with or without pay or benefits) the fired faculty member until the arbitration is complete. Job-preserving clauses after termination, such as the example above, continue to be exceptional and comprise effectively a form of new “stay”, “leave” or “suspension” after termination.

Usually the institution will immediately follow up the termination with a formal written relief “of all duties” and other prescriptions not to contact certain people and enter upon the campus. However, this relief of duties does not also usually expressly revoke “privileges”. It will be challenging to enforce one’s Collective Agreement rights during the interregnum, but the arbitration hearing can address any breaches and a request for remedies.

In the absence of further Collective Agreement direction on interregnum status, the post-termination actions of the academic institution will speak loudly. Listing the fired faculty member on the directory of employees, keeping the position open, and retaining the fired faculty member’s office, telephone number and email account all contribute to the impression that the employer institution considers the fired faculty member to enjoy an implicit ongoing relationship during the interregnum, even if relieved of all duties, on leave or suspended. The institution’s controls over the faculty member in any manner, such as expressly declaring relief of all duties, stay of termination, leave, or suspension (employers do not issue suspensions to strangers) and specifically regulating the faculty member’s speech or actions – these all imply the academic institution’s acceptance of an ongoing (if exceptional) employment relationship.


Once universities and colleges fire a faculty member, they usually seek to limit the latter’s access to campus, servers, students, staff and academic colleagues, for operational morale and security reasons. Normally, they strenuously deny that the fired faculty member retains any kind of employee status for what could be a few years while the grievance arbitration plays out.

The status issue is more pertinent for the fired faculty member who is otherwise powerless throughout the arbitral interregnum. The possibility of reinstatement and back pay further complicates the matter.

Overall, the Collective Agreement will determine the faculty member’s interregnum status. To the extent it is silent on the issue, the institution’s own actions and attempts to exercise any control over the fired faculty member during the interregnum may imply an ongoing and unpaid employment relationship.