The Public Service Labour Relations Act (PSLRA) changed the grievance system in several ways.
First, in consultation with the union representatives in their respective departments or organizations, deputy heads in the core public administration are required to establish an informal conflict management system (s. 207).
Second, the PSLRA refers to three types of grievances: individual grievances, group grievances and policy grievances.
Individual grievances relate to the interpretation or application of a collective agreement or arbitral award or any matter affecting the terms and conditions of a specific individual’s employment, such as disciplinary action, demotion, termination, suspension or financial penalty (s. 208).
If an employee grieves against a termination of employment or demotion for unsatisfactory performance and refers the grievance to adjudication, s. 230 of the PSLRA requires the adjudicator to find that the termination or demotion was for cause if he or she determines that the deputy head’s opinion about the unsatisfactory nature of the employee’s work was reasonable.
The PSLRA allows grievances against deployment. Such grievances, however, can be referred to adjudication only when they relate to deployment without consent, where consent is required (s. 209(1)).
When an employee has a workplace dispute, he or she must choose between presenting a grievance and making a complaint under any applicable internal policy of the employer. However, this requirement to choose applies only if the internal policy expressly states that the employee gives up his or her right to grieve when he or she pursues relief under the policy.
It is now possible to refer grievances involving issues under the Canadian Human Rights Act, except in relation to pay equity, and be awarded monetary relief as provided under the PSLRA (s. 208). The Canadian Human Rights Commission is entitled to be notified of such grievances and has standing to make submissions to an adjudicator.
The Budget Implementation Act, 2009, which received royal assent on March 12, 2009, provides that complaints that are before the Canadian Human Rights Commission relating to pay equity complaints under section 7 (employment) or 10 (policy or discriminatory practice) and all complaints relating to section 11 (equal wages) of the Canadian Human Rights Act are to be referred, without delay, to the PSLRB.
A group grievance may be presented when two or more employees in a single department or agency are similarly affected by the interpretation or application of a collective agreement or arbitral award (s. 215). Employees are able to opt into a group grievance referred by their bargaining agent. Employees may decide later that they no longer wish to participate in the group grievance and opt out (s. 218)
A policy grievance relates to the interpretation or application of a collective agreement or an arbitral award (s. 220). Either the bargaining agent or the employer can refer a policy grievance.
The PSLRA provides for the possibility to refer grievances to adjudication before the Public Service Labour Relations Board (PSLRB), for determination by an independent third party. In the case of an individual grievance, if at the end of the departmental or agency internal grievance procedure, the grievance has not been resolved to the employee’s satisfaction, the employee may refer the grievance to adjudication before the PSLRB if the grievance relates to:
Group and policy grievances may also be referred to adjudication, as they relate to the application or interpretation of a collective agreement or an arbitral award.
A grievance can be referred to adjudication by completing a Reference to Adjudication form (Form 20 or 21 depending on the type of grievance). The grievor should submit the reference to adjudication to the Executive Director of the PSLRB in duplicate (one original and one copy), with two copies of the grievance, no later than 40 calendar days after receiving the employer’s decision at the final level of the grievance process or 40 days after the expiry of the period within which the decision had to be made (unless the collective agreement provides for different time limits).
The Executive Director will formally acknowledge receipt of the grievance and forward a copy of the reference to the employer or the deputy head of the department or government organization. If the issue involves the interpretation or application of the Canadian Human Rights Act, the party raising the issue must notify the Canadian Human Rights Commission (CHRC) and must provide a copy of that notification to the Executive Director and the other party. The CHRC must then, within 15 days of receiving that notification, indicate whether it intends to make submissions on that issue.
The employer has 30 days to provide the Executive Director with a copy of the decisions that were provided to the grievor at each level of the grievance process.
The PSLRB will offer the parties the opportunity to participate in mediation at any time during the adjudication process. If the mediation is successful, the grievor can withdraw the grievance.
If there are no issues raised by the parties (requests for clarification, questions of timeliness, etc.) which could delay the process, the matter is then scheduled for hearing, which can be in several months’ time. Parties are usually advised at least three months in advance that a matter has been tentatively scheduled for hearing and requested to confirm their availability. The hearing schedule is finalized at least two months beforehand. Not all grievance referrals will proceed to hearing. Some may be determined based on what has been submitted on file.
In grievance proceedings involving discipline, such as termination, the onus is on the employer to prove that the action taken was warranted. In such cases, the employer presents evidence first. In cases of alleged disguised discipline, the burden of proof rests with the grievor. In grievances against a rejection on probation, the employer must show employment-related reasons for the rejection and the grievor must prove bad faith on the part of the employer. In rejection-on-probation grievances, the employer presents evidence first. In grievances involving the interpretation or application of the collective agreement or arbitral award, the grievor proceeds first.
The time required to resolve a grievance case once it has been referred for adjudication varies with the case and depends largely on the parties involved. The PSLRB encourages both parties to continue working towards a settlement throughout the adjudication process since it is preferable that the parties arrive at a satisfactory resolution on their own. The PSLRB’s mediation services can help the parties achieve a settlement without going to adjudication by assisting them to resolve issues in dispute quickly and efficiently.
Those thinking about referring a grievance to adjudication are strongly advised to seek the advice of their bargaining agent or of a private practice lawyer before commencing.
To maintain its impartiality, the PSLRB plays a completely neutral role throughout all of its processes. This means information is provided in an unbiased fashion, no advice or strategy is given to either party, and no monetary support is provided.
An officer from the PSLRB’s Registry Operations and Policy Division is assigned to each case. This individual will be in contact with the parties to help them move the process forward and to answer procedural questions.
If you are representing yourself, until your case is heard, the only contact you will have is with employees of this division, so it is important to understand what they can and cannot do to help you prepare your case. Please refer to Representing yourself: How we can help for more information. If you are being represented by your bargaining agent or by a private practice lawyer, employees will communicate only with your representative. More information for representatives is provided in Practice Notes.
Expedited grievance adjudication allows certain grievances to be dealt with without resorting to a full hearing process, thus saving parties time and resources. This method of adjudication has been in use since 1994 and most employers and unions have agreed to use it in specific cases.
In the expedited process, the parties normally file an agreed statement of facts and no witnesses are heard. Oral decisions are given to the parties at the end of the hearing. A short written decision follows within five days. The parties agree that decisions rendered this way are not precedent setting and will not be subject to judicial review.
Either party can apply for an expedited hearing, but for this process to be used, both parties (employer and bargaining agent) must have previously signed a memorandum of understanding with the PSLRB. Individuals representing themselves may not apply for expedited adjudication.
The Public Service Labour Relations Act does not provide for any power to modify the decision that an adjudicator has rendered on a grievance. Therefore, the Board can take no action on your request.
That said, if you are not satisfied with the decision that an adjudicator has rendered on your grievance, you may challenge that decision in the Federal Court, by initiating judicial review proceedings. You may wish to contact Federal Court staff at http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/CAS/locations_eng for information on the appropriate steps to follow. Be mindful that strict, short deadlines apply.
More information about judicial review proceedings is available from the Federal Court’s website at http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Registry and from the Courts Administration Service’s guide on judicial review, which is accessible at http://cas-ncr-nter03.cas-satj.gc.ca/fct-cf/pdf/judicial_review_e.pdf. More information is available on our judicial review fact sheet.