Matriz de evaluación: dimensiones, componentes, indicadores y medios de verificación

This subsection will consider the collective agreement terms that establish the grievance and arbitration process. Chapter 9, which deals with the administration of the collective agreement, will review the application of the grievance and arbitration process in particular areas, such as terminations and disputes regarding the application of seniority to job vacan-cies and layoffs. We cover this topic here only because the discussion of other contract terms requires an understanding of the grievance and arbitration procedure—in most collective agreements, it would not follow the recognition clause. For additional information on the legal aspects of grievance and arbitration, readers may wish to refer to specialized sources.¹ grievance Defined At one time, a “grievance” simply referred to a claim that the col-lective agreement had been violated. Some arbitrators held that because their jurisdiction flowed from the agreement, they did not have jurisdiction in a dispute that involved legisla-tion unless the agreement provided a conneclegisla-tion to the legislalegisla-tion. However, the Supreme Court of Canada has recently held that all employment and human rights statutes are incor-porated into collective agreements.² Accordingly, a grievance can be filed whenever it is claimed that such legislation has been violated. In view of this development, a grievance should now be defined as an allegation that the collective agreement or an employment statute, including human rights legislation, has been violated, together with the remedy that is claimed to rectify the situation. A sample grievance is provided in Figure 7-2. Similar examples may also be located at some unions’ websites.

grievance procedure The grievance procedure includes a series of steps, usually three or four, in which union and employer representatives at progressively higher levels meet to

A grievance is an allegation that the collective agreement or an employment statute has been violated, together with the remedy that is claimed to rectify the situation.

figure 7-2 Sample Grievance

grievance: I grieve that I have been laid off contrary to the terms of the collective agreement.

settlement desired: Compliance with the collective agreement, including compensation, interest, reinstatement in [position], and any other appropriate remedies.

Date: ___________________

signature of grievor(s): ___________________

The grievance procedure is a series of steps in which union and employer representatives at progressively higher levels meet to try to resolve the dispute.

try to resolve the dispute. The collective agreement will set out the number of steps in the process and time limits for each. An example of a grievance procedure is provided in Figure 7-3. The procedure article will refer to union stewards and other union officials who repre-sent the union. A steward is an elected local union official who assists employees with issues, including grievances, that arise in the course of administration of the collective agreement. His or her duties include explaining collective agreement terms to employees, preparing grievances, attending grievance meetings, and attempting to settle grievances.

Labour relations legislation requires collective agreements to contain a term providing that any disputes regarding the administration of the agreement that the parties cannot resolve be referred to arbitration. Arbitration is a dispute resolution method in which the parties present evidence and arguments to a third party who makes a final, binding decision. The details of the arbitration process are covered in Chapter 9.

types of grievances A grievance might be filed by an individual employee, a group of employees, the union, or the employer. There is no requirement that the grievance specify the articles of the collective agreement that have been violated unless the collective agree-ment says they must be provided. An employer might prefer that the grievance identify the articles, but unions generally prefer to avoid this. As is noted below, there might be rules in the collective agreement that affect who can file a grievance in a given situation.

There are several types of grievances. An individual grievance is an allegation by an employee that the employer has violated the collective agreement or statute and it includes

A steward is an elected local union official who assists employees with issues, including grievances, that arise in the course of administration of the collective agreement.

Arbitration is a dispute resolution method in which the parties present evidence and arguments to a third party who makes a final, binding decision.

An individual grievance is an allegation by an employee that the employer has violated the collective agreement or a statute and includes a statement of the remedy sought.

figure 7-3 Grievance Procedure

1.1 It is understood that an employee has no grievance until they first give their immediate supervisor an opportunity to deal with their complaint. If an employee has a complaint they shall discuss it with their supervisor. In order to be considered a grievance, such discussion must take place within five working days after the circumstances giving rise to the complaint first occurred. The supervisor shall communicate a reply to the com-plaint within five working days.

1.2 If the complaint of an employee is not settled to the satisfaction of the employee then the following steps of the grievance procedure may be invoked.

step 1

The grievance shall be reduced to writing and shall be presented to the supervisor, with the assistance of a union steward, within five working days from the reply of the supervisor.

After such discussion as is necessary, the supervisor shall deliver a decision in writing within five working days following the day on which the grievance was presented.

step 2

If the decision of the supervisor is not satisfactory, the chief steward shall within eight work-ing days present the grievance to the department manager. The department manager will meet with the chief steward and the department steward within eight working days to dis-cuss the grievance and will give a decision in writing to the chief steward within four work-ing days after the meetwork-ing has been held.

step 3

Failing satisfactory settlement of the grievance at Step 2 the union president shall within five working days of receipt of the department manager’s decision present the grievance to the manager of labour relations or their designate. A meeting between the union president and the manager of labour relations will be held within a further four working days. The written decision of the labour relations manager shall be rendered within five working days follow-ing the date of such meetfollow-ing.

1.3 Failing a satisfactory settlement being reached in Step 3, then the grievance may be referred by either party to arbitration as provided in Article ____, at any time within 14 working days after the decision is given in Step 3.

151 T h e C o l l e c t i v e A g r e e m e n t

a statement of the remedy sought by the employee. For example, if an employee was unsuc-cessful in a bid for a job vacancy, he or she might think the employer did not properly take seniority into account. An individual grievance might be filed that alleged the employer had violated the seniority provisions of the agreement and state that the remedy sought is the placement of the grievor in the job. A group grievance is a claim by a number of employees that the employer has violated the collective agreement in the same manner for all the employees affected. For example, a group may claim that the employer incorrectly calculated their holiday pay and claim compensation. A policy grievance is an allegation by either the union or the employer that the other has violated the collective agreement. An example of a policy grievance is a claim that the employer has violated the collective agree-ment by banning the use of personal cell phones on company property, in violation of the management rights article, with a request for an order that the rule be rescinded. The griev-ance procedure article will set out the process to be followed for any grievgriev-ances. Employers would prefer that the procedure provide for an employee to first make a complaint before filing a grievance as in Article 1.1 in Figure 7-3. At each step in the process the grievance could be settled, withdrawn, or denied by the employer. If the employer denies the griev-ance the union will have to decide whether to withdraw it or proceed to the next step. If the grievance is not resolved it might be referred to arbitration. The collective agreement usu-ally provides that some types of grievances are started at a higher step in the process or have different time limits. For example, the agreement may provide that a policy grievance starts at Step 2 and a discharge grievance starts at Step 3. Unless the collective agreement pre-vents it, the union may file a grievance even if an individual employee does not.

time limits The time limits in the grievance process may be either mandatory or direc-tory. A mandatory time limit is one that must be met, and the grievance might be dismissed if a step is not taken within the time allowed. Directory time limits are viewed as a guide, and the grievance may be allowed to proceed even if they are not met. If the agreement pro-vides that a step “may” be taken within a specified number of days, it is directory only and failure to meet it does not prevent the grievance from going to arbitration. The grievance is still arbitrable. If the time limits are mandatory and a step is not taken within the time specified, the grievance cannot proceed to arbitration unless there is an extension granted by the arbitrator, as explained below. Many arbitrators are of the opinion that the word “shall”

in a time limit is not enough to make the time limit mandatory. They have held that unless the agreement also provides specific consequences for failing to meet the time limit, such as

“the grievance shall be deemed to have been abandoned,” the time limit is not mandatory.

Employers usually prefer to have mandatory time limits and may seek language in the agree-ment that will meet this objective. Unions usually prefer that time limits be directory.

The issue of time limits is further complicated by labour relations legislation in six jurisdictions—Canada, British Columbia, Manitoba, New Brunswick, Ontario, and Saskatchewan—that gives an arbitrator authority to extend a time limit in the grievance process.³ This means that even if the time limits are mandatory, an arbitrator could allow a grievance to go to arbitration. Employers may wish to attempt to have the agreement provide that the arbitrator does not have the authority to extend time limits, but the union would likely resist this.

When a party, usually the employer, fails to reply within the time specified it does not mean that the grievance is decided in the other party’s favour. But it permits the other party to proceed to the next step in the process.

probationary employees Employers may wish to know if the agreement can prevent probationary employees from grieving a dismissal. Labour Relations Issue 7-1 illustrates that the agreement should not directly prohibit the probationary employee from filing a griev-ance. However, with the proper wording, the agreement could provide that the employer has the sole discretion to hire and will be able to avoid grievances relating to the dismissal of probationary employees.

A group grievance is an allegation by a number of employees that the employer has violated the collective agreement or a statute in the same manner for all the employees affected and a statement of the remedy sought.

A policy grievance is an allegation by either the union or the employer that the other has violated the collective agreement.

A mandatory time limit must be met and the grievance might be dismissed if a step is not taken within the time allowed.

Directory time limits are viewed as a guide and it is possible that the grievance will be allowed to proceed even if the time limit is not met.

Labour Relations Issue 7-1

can the collective agreement prevent probationary employees