One of the fundamental objectives of the Public Service Alliance of Canada as outlined in Section 3, Sub-section (2) of the Constitution is:
"To obtain for all public service employees the best standards of compensation and other conditions of employment and to protect the rights and interests of all public service employees."
In order to fulfil the latter part of this objective, it became necessary to have in place a system, which would effectively provide this protection for employees.
Although an Appeal System existed for a number of years, it was quite restrictive and the Alliance, as well as its predecessors, fought for many years for a systematic method of dealing with any complaint that an individual or group of individuals may have in relation to their terms and conditions of employment. With the advent of collective bargaining in the federal public service, the Alliance was successful in having legislation enacted, which provided for, amongst other things, a formal system for the resolution of employee complaints. This system is commonly referred to as the Grievance Procedure.
Section 208 of the FPSLRA, is one of the authorities under which we have the right to grieve.
Section 208 of the Act reads as follows:
PART 2
GRIEVANCES
Interpretation
Individual Grievances
Presentation
Right of employee
208. (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
Limitation
(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.
Limitation
(3) Despite subsection (2), an employee may not present an individual grievance in respect of the right to equal pay for work of equal value.
Limitation
(4) An employee may not present an individual grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies.
Limitation
(5) An employee who, in respect of any matter, avails himself or herself of a complaint procedure established by a policy of the employer may not present an individual grievance in respect of that matter if the policy expressly provides that an employee who avails himself or herself of the complaint procedure is precluded from presenting an individual grievance under this Act.
Limitation
(6) An employee may not present an individual grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
Order to be conclusive proof
(7) For the purposes of subsection (6), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
This legislation provides for basically one substantial right for employees, the right to grieve. There are a number of limitations as well, however, under this section of the act:
- There must be no other administrative procedure for redress provided in or under an Act of Parliament, other than the Canadian Human Rights Act.
- The grievor must have the approval of and be represented by the bargaining agent if the grievance relates to the interpretation or application of a provision of a collective agreement or an arbitral award.
- A grievance cannot deal with the right to equal pay for work of equal value.
- A grievance cannot be filed if an employee elects to use an established complaint procedure if that procedure expressly stipulates that upon such an election, a grievance cannot be filed.
- A grievance cannot be filed against any instruction, direction or regulation made by or on behalf of the Government of Canada in the interest of the safety or security of the country.
As we can see from our examination of Section 208 of the Act, this legislation provides only for one basic right and some specific limitations. We know, however, that there are many more rules and regulations governing the grievance process. Part 2 of the FPSLRA (sections 206 to 238) outlines the legislative provision governing the grievance process. Sections 237 and 238 also authorize the Federal Public Sector Labour Relations and Employment Board to make regulations in relation to the grievance procedure. Section 237 and 238 of the Act reads as follows:
Regulations
Regulations
237. (1) The Board may make regulations respecting the processes for dealing with grievances, including regulations concerning
(a) the manner and form of presenting a grievance and, in the case of group grievances, the form of the consent of the employees concerned;
(b) the maximum number of levels in each grievance process;
(c) the manner in which employees are to be advised of the names of the persons whose decision on a grievance constitutes a level in the grievance process, including the final level;
(d) the time within which a grievance may be presented at any level in a grievance process;
(e) the circumstances in which any level below the final level in a grievance process may be eliminated;
(f) the manner in which and the time within which a grievance may be referred to adjudication after it has been presented up to and including the final level in the grievance process;
(g) the establishment of rules of procedure for the hearing of a grievance;
(h) the specification of the time within which and the persons to whom notices and other documents must be sent or given under this Part or Division 2 of Part 2.1, and when the notices are deemed to have been sent, given or received; and
(i) the manner of giving notice of an issue to the Canadian Human Rights Commission under this Part.
Application of regulations
(2) Regulations made under subsection (1) respecting individual, group or policy grievances do not apply in respect of employees included in a bargaining unit for which a bargaining agent has been certified by the Board to the extent that the regulations are inconsistent with any provisions contained in a collective agreement entered into by the bargaining agent and the employer applicable to those employees.
Regulations
238. The Board may make regulations respecting
(a) the manner of giving notice under subsection 223(1) and the time for making objections under paragraph 223(2)(c); and
(b) the manner in which and the time within which boards of adjudication are to be established.
Pursuant to this authorization under Section 237 and 238, the Federal Public Sector Labour Relations and Employment Board has in fact made regulations and these regulations are outlined in part under Part 2, Section 61 to 106 of the Federal Public Sector Labour Relations Regulations.
Article 18 of the Collective Agreement also affords employees the right to grieve. This article also establishes procedures governing the grievance process.
ARTICLE 18
GRIEVANCE PROCEDURE
18.01 The parties recognize the value of informally resolving problems prior to presenting a formal grievance or using alternative dispute resolution mechanisms to resolve grievances that are presented in accordance with this Article. Accordingly, when an employee:
(a) within the time limits prescribed in clause 18.11, gives notice that he or she wishes to take advantage of this clause for the purpose of informally resolving a problem without recourse to a formal grievance and facilitating discussions between the employee and their supervisors, it is agreed that the period between the initial discussion and the final response shall not count as elapsed time for the purpose of grievance time limits; or,
(b) following the presentation of a grievance and within the time limits prescribed under this Article, gives notice to the delegated grievance step authority of his or her intention to take advantage of alternative dispute resolution mechanisms, the time limits stipulated in this Article may be extended by mutual agreement between the Employer and the employee and, where appropriate, the Alliance representative.
(c) No representative of the Employer or the Bargaining Agent shall seek by intimidation, threat or any other means to compel an employee to either participate or not participate in an alternate dispute resolution mechanism.
(d) When an employee wishes to take advantage of a process outlined under 18.01(a) or 18.01(b) above that pertains to the application of a provision of the collective agreement, the employee may, at his or her request, be represented by the Alliance at any meeting or mediation session held to deal with the matter.
18.02 In determining the time within which any action is to be taken as prescribed in this Article, Saturdays, Sundays and designated paid holidays shall be excluded.
18.03 The time limits stipulated in this Article may be extended by mutual agreement between the Employer and the employee and, where appropriate, the Alliance representative.
18.04 Where the provisions of clauses 18.06, 18.23 or 18.37 cannot be complied with and it is necessary to present a grievance by mail, the grievance shall be deemed to have been presented on the day on which it is postmarked and it shall be deemed to have been received by the Employer on the day it is date stamped received by the appropriate office of the department or agency concerned. Similarly, the Employer shall be deemed to have delivered a reply at any level on the date on which the letter containing the reply is postmarked, but the time limit within which the grievor may present his or her grievance at the next higher level shall be calculated from the date on which the Employer's reply was delivered to the address shown on the grievance form.
18.05 A grievance shall not be deemed to be invalid by reason only of the fact that it is not in accordance with the form supplied by the Employer.
Individual Grievances
18.06 An employee who wishes to present a grievance at any prescribed level in the grievance procedure shall transmit this grievance to the employee's immediate supervisor or local officer-in-charge who shall forthwith:
- forward the grievance to the representative of the Employer authorized to deal with grievances at the appropriate level, and
- provide the employee with a receipt stating the date on which the grievance was received by him or her.
18.07 Presentation of grievance
Subject to and as provided in section 208 of the Public Service Labour Relations Act (PSLRA), an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer, in matters other than those arising from the classification process, is entitled to present a grievance in the manner prescribed in clause 18.06 except that:
- where there is another administrative procedure for redress provided by or under any Act of Parliament other than the Canadian Human Rights Act to deal with the employee’s specific complaint, such procedure must be followed, and
- where the grievance relates to the interpretation or application of this Agreement or an arbitral award, the employee is not entitled to present the grievance unless he or she has the approval of and is represented by the Alliance.
18.08 There shall be no more than a maximum of four (4) levels in the grievance procedure. These levels shall be as follows:
- Level 1 - first (1st) level of management;
- Levels 2 and 3 - intermediate level(s), where such level or levels are established in the Agency;
- Final level - the Commissioner or his or her authorized representative.
Whenever there are four levels in the grievance procedure, the grievor may elect to waive either Level 2 or 3.
18.09 Representatives
(a) The Employer shall designate a representative at each level in the grievance procedure and shall inform each employee to whom the procedure applies of the title of the person so designated together with the title and address of the immediate supervisor or local officer-in-charge to whom a grievance is to be presented.
- This information shall be communicated to employees by means of notices posted by the Employer in places where such notices are most likely to come to the attention of the employees to whom the grievance procedure applies, or otherwise as determined by agreement between the Employer and the Alliance.
18.10 An employee may be assisted and/or represented by the Alliance when presenting a grievance at any level. The Alliance shall have the right to consult with the Employer with respect to a grievance at each or any level of the grievance procedure.
18.11 An employee may present a grievance to the first (1st) level of the procedure in the manner prescribed in clause 18.06, not later than the twenty-fifth (25th) day after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of the action or circumstances giving rise to grievance.
18.12 The Employer shall normally reply to an employee's grievance at any level of the grievance procedure, except the final level, within ten (10) days after the grievance is presented, and within thirty (30) days when the grievance is presented at the final level.
18.13 An employee may present a grievance at each succeeding level in the grievance procedure:
- where the decision or offer for settlement is not satisfactory to the employee, within ten (10) days after that decision or offer for settlement has been conveyed in writing to the employee by the Employer, or
- where the Employer has not conveyed a decision within fifteen (15) days from the date that a grievance is presented at any level, except the final level, the employee may, within the next ten (10) days, submit the grievance at the next higher level of the grievance procedure.
18.14 Where an employee has been represented by the Alliance in the presentation of his or her grievance, the Employer will provide the Alliance with a copy of the Employer's decision at each level of the grievance procedure at the same time that the Employer's decision is conveyed to the employee.
18.15 The decision given by the Employer at the Final Level in the grievance procedure shall be final and binding upon the employee unless the grievance is a class of grievance that may be referred to adjudication.
18.16 Where it appears that the nature of the grievance is such that a decision cannot be given below a particular level of authority, any or all the levels except the final level may be eliminated by agreement of the Employer and the employee, and, where applicable, the Alliance.
18.17 Where the Employer demotes or terminates an employee for cause pursuant to paragraph 51(1)(f) or (g) of the Canada Revenue Agency Act, the grievance procedure set forth in this Agreement shall apply, except that the grievance may be presented at the final level only.
18.18 An employee may by written notice to his or her immediate supervisor or officer-in-charge withdraw a grievance.
18.19 Any employee who fails to present a grievance to the next higher level within the prescribed time limits shall be deemed to have abandoned the grievance unless, due to circumstances beyond his or her control, he or she was unable to comply with the prescribed time limits.
18.20 No person shall seek by intimidation, by threat of dismissal or by any other kind of threat to cause an employee to abandon his or her grievance or refrain from exercising his or her right to present a grievance, as provided in this Collective Agreement.
18.21 Reference to Adjudication
Where an employee has presented a grievance up to and including the Final Level in the grievance procedure with respect to:
- the interpretation or application, in respect of him or her, of a provision of this Agreement or a related arbitral award, or
- disciplinary action resulting in termination of employment pursuant to paragraph 51(1)(f) of the Canada Revenue Agency Act, suspension or financial penalty,
and the employee’s grievance has not been dealt with to his or her satisfaction; he or she may refer the grievance to adjudication in accordance with the provisions of the PSLRA and Regulations.
18.22 The employee must obtain the approval of, and be represented by, the Alliance in respect of any grievance referred to in paragraph 18.21(a).
Group Grievances
18.23 The Alliance may present a grievance at any prescribed level in the grievance procedure, and shall transmit this grievance to the officer-in-charge who shall forthwith:
(a) forward the grievance to the representative of the Employer authorized to deal with grievances at the appropriate level, and
(b) provide the Alliance with a receipt stating the date on which the grievance was received by him or her.
18.24 Presentation of a Group Grievance
Subject to and as provided in section 215 of the PSLRA, the Alliance may present to the Employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or an arbitral award.
18.25 There shall be no more than a maximum of three (3) levels in the grievance procedure:
- Level 1 - first (1st) level of management;
- Level 2 - intermediate level, where established in the Agency;
- Final level - the Commissioner or his or her authorized representative.
18.26 The Employer shall designate a representative at each level in the grievance procedure and shall inform the Alliance of the title of the person so designated together with the title and address of the officer-in charge to whom a grievance is to be presented.
18.27 The Alliance shall have the right to consult with the Employer with respect to a grievance at each or any level of the grievance procedure.
18.28 The Alliance may present a grievance to the first level of the procedure in the manner prescribed in clause 18.24, no later than the twenty-fifth (25th) day after the earlier of the day on which the aggrieved employees received notification and the day on which they had knowledge of any act, omission or other matter giving rise to the group grievance.
18.29 The Alliance may present a grievance at each succeeding level in the grievance procedure:
- where the decision or offer for settlement is not satisfactory to the Alliance, within ten (10) days after that decision or offer for settlement has been conveyed in writing to the Alliance by the Employer, or
- where the Employer has not conveyed a decision within twenty (20) days from the date that a grievance is presented at any level, except the final level, the Alliance may, within the next ten (10) days, submit the grievance at the next higher level of the grievance procedure.
18.30 The Employer shall normally reply to the Alliance’s grievance at any level of the grievance procedure, except the final level, within fifteen (15) days after the grievance is presented, and within thirty (30) days when the grievance is presented at the final level.
18.31 Where it appears that the nature of the grievance is such that a decision cannot be given below a particular level of authority, any or all the levels except the final level may be eliminated by agreement of the Employer and the Alliance.
18.32 The Alliance may by written notice to the officer-in-charge withdraw a grievance.
18.33 Opting Out of a Group Grievance
- An employee in respect of whom a group grievance has been presented may, at any time before a final decision is made in respect of the grievance, notify the Alliance that the employee no longer wishes to be involved in the group grievance.
- The Alliance shall provide, to the representatives of the Employer authorized to deal with the grievance, a copy of the notice received pursuant to paragraph (1) above.
- After receiving the notice, the Alliance may not pursue the grievance in respect of the employee.
18.34 The Alliance failing to present a grievance to the next higher level within the prescribed time limits shall be deemed to have abandoned the grievance unless, due to circumstances beyond its control, it was unable to comply with the prescribed time limits.
18.35 No person shall seek by intimidation, by threat of dismissal or by any other kind of threat to cause the Alliance to abandon the grievance or refrain from exercising the right to present a grievance, as provided in this Collective Agreement.
18.36 Reference to Adjudication
The Alliance may refer to adjudication any group grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to its satisfaction.
Policy Grievances
18.37 The Employer or the Alliance may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally.
18.38 A policy grievance shall be presented at the final level in the grievance procedure to the representative of the Alliance or the Employer, as the case may be, authorized to deal with the grievance. The party who receives the grievance shall provide the other party with a receipt stating the date on which the grievance was received.
18.39 The Employer and the Alliance shall designate a representative and shall notify each other of the title of the person so designated together with the title and address of the officer-in charge to whom a grievance is to be presented.
18.40 The Employer or the Alliance may present a grievance in the manner prescribed in clause 18.38, no later than the twenty-fifth (25th) day after the earlier of the day on which it received notification and the day on which it had knowledge of any act, omission or other matter giving rise to the policy grievance.
18.41 The Employer or the Alliance shall normally reply to the grievance within twenty (20) days when the grievance is presented.
18.42 The Employer or the Alliance, as the case may be, may by written notice to the officer-in-charge withdraw a grievance.
18.43 Reference to Adjudication
A party that presents a policy grievance may refer it to adjudication in accordance with the provisions of the PSLRA.
Expedited Adjudication
18.44 The parties agree that any adjudicable grievance may be referred to the following expedited adjudication process:
- At the request of either party, a grievance that has been referred to adjudication may be dealt with through Expedited Adjudication with the consent of both parties.
- When the parties agree that a particular grievance will proceed through Expedited Adjudication, the Alliance will submit to the Public Service Labour Relations and Employment Board (PSLREB) the consent form signed by the grievor or the bargaining agent.
- The parties may proceed with or without an Agreed Statement of Facts. When the parties arrive at an Agreed Statement of Facts it will be submitted to the PSLREB or to the adjudicator at the hearing.
- No witnesses will testify.
- The Adjudicator will be appointed by the PSLREB from among its members who have had at least two (2) years experience as a member of the Board.
- Each Expedited Adjudication session will take place in Ottawa, unless the parties and the PSLREB agree otherwise. The cases will be scheduled jointly by the parties and the PSLREB, and will appear on the PSLREB schedule.
- The Adjudicator will make an oral determination at the hearing, which will be recorded and initialed by the representatives of the parties. This will be confirmed in a written determination to be issued by the Adjudicator within five (5) days of the hearing. The parties may, at the request of the Adjudicator, vary the above conditions in a particular case.
- The Adjudicator’s determination will be final and binding on all the parties, but will not constitute a precedent. The parties agree not to refer the determination to the Federal Court.
As the Regulations may be modified from time to time by the Federal Public Sector Labour Relations and Employment Board (FPSLREB) and as the provisions of the Collective Agreement may be altered through the collective bargaining process, it is possible that provisions contained in Article 18 may conflict with similar or identical provisions contained in the Regulations. As a result, Section 237(2) of the Act has this to say.
237 (2) Regulations made under subsection (1) respecting individual, group or policy grievances do not apply in respect of employees included in a bargaining unit for which a bargaining agent has been certified by the Board to the extent that the regulations are inconsistent with any provisions contained in a collective agreement entered into by the bargaining agent and the employer applicable to those employees.
In other words, where there is a conflict between the provisions contained in the Regulations and the Collective Agreement, the Collective Agreement shall prevail.
Article 18 of the Program Delivery and Administration Services Agreement and Part 2 of the FPSLR Regulations outline specific rights and obligations for employees, the Union and the employer. As a steward, it will be very important for you to know and understand these rights and obligations. In order to assist you in this task, we will now examine how these rights and obligations apply to each party.
From our analysis of article 18 and the FPSLR Regulations, we determined that there are many rights and obligations governing the grievance procedure.
From this, one can see that ideally, the grievance procedure has been established to protect the interests of employees. You will soon see, however, as you gain experience, that it doesn't always appear to be true. Consequently, it becomes incumbent upon you as a steward to make sure that the members' rights and interests are protected by knowing the law thoroughly as it relates to grievances and the grievance procedure.
Related Handouts:
1.1 Federal Public Sector Labour Relations Act, Part 2, Grievances, Interpretation
1.2 Federal Public Sector Labour Relations Act, Part 2, Grievances, General Provisions
1.3 Excerpts from the Federal Public Sector Labour Relations Act
1.4 Answers to Workshop on Employee, Union, and Employer Rights and Obligations (given via Chatroom)
Duty of fair representation in grievance handling
As a union representative, you will have to decide on the representation of a member, the filing of grievance, etc. This decision should be made in good faith, dealing with different situations. You will have to determine the viability to proceed or not with a grievance. This decision cannot be arbitrary, in bad faith and discriminatory. In fact, the FPSLRA, section 187 states:
“Unfair representation by bargaining agent
187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.”
Complaints
190. (1) The Board must examine and inquire into any complaint made to it that
(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.
Time for making complaint
(2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.
Orders
192. (1) If the Board determines that a complaint referred to in subsection 190(1) is well founded, the Board may make any order that it considers necessary in the circumstances against the party complained of, including any of the following orders:
(d) if an employee organization has failed to comply with section 187, an order requiring the employee organization to take and carry on on behalf of any employee affected by the failure or to assist any such employee to take and carry on any proceeding that the Board considers that the employee organization ought to have taken and carried on on the employee’s behalf or ought to have assisted the employee to take and carry on;
To act in good faith implies sincerity, honesty and loyalty in the execution of your obligations as a local / regional representative.
Consideration of due diligence implies acting without delay (efficiency) and effectively in the execution of your obligations.
Related Handouts:
1.5 PSLRB, Perron v. Customs and Immigration Union
1.6 PSLRB, Gabris v. D’Souza and Burt
1.7 PSLRB, Laferrière v. Hogan and Baillairgé
1.8 Duty of Fair Representation11/24
The duty of fair representation was initially argued by the Supreme Court of Canada in the decision of Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509.
Writing on behalf of the Court, the Honourable Mr. Justice Chouinard wrote, “The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit. The representation must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee...the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion. This discretion however must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other. In short, the union’s decision must not be arbitrary, capricious, discriminatory or wrongful.” (emphasis added by the author)
As per the FPSLRA, paragraph 190 (2), a member has 90 calendar days to file a complaint to the FPSLREB. The burden of proof lies on the member and based on the standard of the balance of probabilities.
In the next module, we will look more closely at the grievance procedure by studying the different types of grievances and how the procedures sometimes vary depending on the type of grievance.