ARCHIVED - Guidelines on the Grievance Procedure (Draft)

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These guidelines describe the responsibilities of the Treasury Board Secretariat (TBS) and departments and agencies in the core public administration with respect to requirements under the PSLRA sections 208, 215 and 220, the collective agreements, and Part 2 of the Public Service Labour Relations Board (PSLRB) Regulations.

Legislative base

The grievance procedure is a formal administrative process through which employees may seek the resolution of most differences pertaining to terms and conditions of employment. Under the Public Service Labour Relations Act (PSLRA), there are three types of grievances: an individual grievance (section 208 insert link), a group grievance (section 215 insert link) and a policy grievance (section 220 insert link).

The following guidelines are based on the provisions of the PSLRA and of the PSLRB Regulations. However, it should be noted that collective agreement provisions relating to grievances take precedence over regulations where there is an inconsistency (PSLRA s. 237 (2)).

Informal Conflict Management System (ICMS)

The parties can also avail themselves of the Informal Conflict Management System (ICMS), established under PSLRA s. 207. As indicated in the ICMS Directive (link), an informal conflict management system is "a system for dealing with conflict, which incorporates alternative dispute resolution methods into existing rights-based structures to form a multi-option conflict management system."

When the parties agree to use the ICMS to resolve a grievance, the time limits prescribed in the Public Service Labour Relations Board Regulations or contained in a collective agreement are suspended until either party gives notice to the other in writing to the contrary. (PSLRB Regulations, s. 62) Departments may wish to consider implementing some sort of tracking mechanism for the use of ICMS.

Time limits

The PSLRB Regulations have new provisions regarding time limits. A grievance may be rejected at a higher level of the applicable grievance process for the reason that a time limit in the PSLRB Regulations for filing and processing a grievance has not been met only if the grievance was rejected for that reason at the lower level (PSLRB Regulations, s. 63). It is therefore recommended that in all cases where the grievance does not meet the time limit criteria, the time limit objection should be raised at each and every step of the grievance process, where applicable.

Grievances

Individual grievances

An individual grievance may relate to the interpretation or application of a collective agreement or arbitral award or any matter affecting the terms and conditions of that individual's employment, such as disciplinary action, demotion, termination, suspension or financial penalty (PSLRA s. 208).

According to the PSLRB Regulations, an individual grievance process shall consist of a maximum of three (3) levels. An individual grievance may be presented directly at the final level of the grievance process if the grievance relates to a demotion or a termination of employment (PSLRB Regulations, s. 71). However, some collective agreements may have different provisions.

Departments and agencies are responsible for notifying their employees of the names or titles of the persons whose decision on a grievance constitutes a level in the individual grievance process and the name or title and address of the immediate supervisor or local officer-in-charge to whom an individual grievance may be presented (PSLRB Regulations, s. 65 (1)). The employer must post copies of the notice in conspicuous places where they are most likely to come to the attention of the employees (PSLRB s. 65 (2)).

If that information is more likely to come to the attention of employees by a means other than posting notices, the Board shall authorize an employer to communicate the information to its employees by a means other than posting notices (PSLRB s, 65 (3)).

Employees 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 (CHRA). (PSLRA s. 208(2))

Upon the coming into force of the Public Service Employment Act (PSEA), deployments under the new PSEA can be grieved since the existing administrative process for redress will no longer exist. Such grievances can be referred to adjudication only when they relate to deployment without consent, where consent is required (PSLRA s. 209 (1)). Only the employee who has been deployed may refer such a grievance to adjudication (PSLRA s. 211 (b)).

Employees cannot present an individual grievance in respect of any matter covered by a policy of the employer (i.e. TBS or PSHRMAC), if the employee has availed himself or herself of a complaint procedure established by that policy and the policy expressly provides that in such cases, the employee is precluded from presenting a grievance. (PSLRA s. 208(5)).

Four types of individual grievances may be referred to adjudication (PSLRA s. 209(1)):

1. Grievances with respect to the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award (approval of the bargaining agent is required).
2. Grievances with respect to disciplinary action resulting in termination, demotion, suspension or financial penalty; and
3. Grievances with respect to:
   1. Demotion or termination under paragraph 12(1)(d) of the amended Financial Administration Act (FAA) for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct;
   2. Deployment under the PSEA without the employee's consent where consent is required (upon the coming into force of the PSEA).

When an individual grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must notify the Canadian Human Rights Commission of that issue (PSLRA s. 210(1) and PSLRB Regulations s. 92(1)). The Canadian Human Rights Commission can make submissions at adjudication on that issue. (PSLRA s. 210 (2))

If an employee grieves against a termination of employment or demotion for unsatisfactory performance and refers the grievance to adjudication, the adjudicator must find that the termination or demotion was for cause if he or she determines that the deputy head's opinion was reasonable (PSLRA s. 230).

Group grievances

A group grievance can only be presented by a bargaining agent on behalf of employees in a 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. (PSLRA s. 215(1))

According to the PSLRA, a group grievance "must relate to employees in a single portion of the federal public administration" (s. 215 (3)). For the purpose of these Guidelines, a single portion is any department or agency listed in Schedules I and IV of the Financial Administration Act (FAA). In order to present the grievance, the bargaining agent must first obtain the consent of each of the employees concerned, in the form provided for in section 77(2) of the PSLRB Regulations. If an employee later decides that he or she no longer wishes to participate in the group grievance, the employee can opt out (PSLRA s. 218).

A group grievance process shall consist of a maximum of three levels (PSLRB Regulations, s. 74). Departments and agencies must advise the bargaining agent of the employees to whom the group grievance applies of the name or title and address of the person to whom a group grievance may be presented (PSLRB Regulations, s. 75). As group grievances may involve employees from multiple geographical locations and/or organizational sectors, the group grievance process should be flexible enough to allow the first common level of authority to respond, while respecting the provisions of the collective agreement and PSLRB Regulations.

Bargaining agents have the right to present group grievances, unless another administrative process for redress exists under any Act of Parliament, other than the Canadian Human Rights Act (PSLRA s. 215 (4)).

A bargaining agent may refer any group grievance to adjudication (PSLRA s. 216).

When a group grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must notify the Canadian Human Rights Commission of that issue. (PSLRA s. 217(1)) The Canadian Human Rights Commission can make submissions at adjudication on that issue (PSLRA s. 217(2) and PSLRB Regulations s. 92(1)).

Policy grievances

 A bargaining agent and the employer (i.e. Treasury Board) have the right to present a policy grievance to the other with respect to the interpretation or application of the collective agreement or arbitral award which binds them, as it relates to either of them or to the bargaining unit generally (PSLRA s. 220).

A policy grievance process shall consist of one level (PSLRB Regulations, s. 83). It must be presented directly to the Treasury Board Secretariat, Employer Representation Group as the employer's representation.

The employer and a bargaining agent cannot present a policy grievance in respect of any administrative procedure for which redress is provided under any Act of Parliament, other than the Canadian Human Rights Act (PSLRA s. 220).

A party that presents a policy grievance may refer it to adjudication (PSLRA s. 221).

When a policy grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must notify the Canadian Human Rights Commission of that issue. (PSLRA s. 222(1))  The Canadian Human Rights Commission can make submissions at adjudication on that issue (PSLRA s. 222(2) and PSLRB Regulations s. 92(1)).

 

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