When an employee feels aggrieved as a result of an occurrence or matter affecting his or her terms and conditions of employment, the employee is entitled to present an individual grievance to his or her immediate supervisor or the person identified as the first level response to a grievance within the organization. Employers may have specific grievance procedures within the organization and each level of the internal grievance process will include specific timelines for filing and for response.
Grounds for referring and individual grievance to adjudication before the Board
If, after presenting an individual grievance to the final level of the internal grievance process, an employee is not satisfied with the outcome of the process, he may refer it to adjudication under section 209 and 209.1 of the Federal Public Sector Labour Relations Act (FPSLRA) if it relates to:
- the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;
- a disciplinary action resulting in termination, demotion, suspension or financial penalty;
- in the case of an employee of the core public administration, a demotion or termination for unsatisfactory performance under paragraph 12(1)(d) of the Financial Administration Act (FAA) or for any reason that does not relate to a breach of discipline or misconduct under paragraph 12(1)(e) of the FAA;
- in the case of an employee of the core public administration, a deployment under the Public Service Employment Act (PSEA) without the employee’s consent, where consent is required ;
- a demotion or termination not related to a breach of discipline or misconduct of an employee of a separate agency (Schedule V of the FAA) designated under subsection 209(3) of the FPSLRA.
- if the employee has suffered physical or psychological harm, property damage or economic loss as the result of – or has otherwise been adversely affected by – the contravention of a provision of regulations made under s. 117(1) of the Accessible Canada Act, and the grievance is related to that contravention (section 209.1 of the FPSLRA). Note: Since there are no regulations made under s. 117(1) of the Accessible Canada Act yet, employees cannot file a grievance on this ground until such regulations are made.
Bargaining agent or lawyer representation
If the grievance relates to the interpretation or application of a provision of collective agreement or an arbitral award, representation by a bargaining agent is mandatory. Grievances related to the interpretation or application of a provision of the collective agreement should be referred to adjudication using form 20 and this form must be signed by your bargaining agent.
Individual grievances relating to a termination, demotion, suspension or financial penalty should be referred to adjudication using form 21. Bargaining agent representation is not necessary.
Note: If you are thinking of referring a grievance to adjudication, it is strongly encouraged that you seek the advice of your bargaining agent or lawyer before commencing.
To maintain its impartiality, the Board 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 individual grievance may not be presented if:
- the grievance involves “the right to equal pay for work of equal value”;
- the grievance relates to the interpretation or application of a collective agreement or arbitral award and the bargaining agent has not indicated its willingness to represent the grievor in an adjudication proceeding;
- an employee has chosen an internal complaint procedure which provides that her or she cannot file an individual grievance; or
- the grievance is related to action taken under instruction, direction or regulation given by or made by the Government of Canada in the interest of the safety or security of Canada or states associated to Canada.
- a redress process is already provided for under any Act of Parliament, other than the Canadian Human Rights Act;
The grievor should submit the reference to adjudication to the Board no later than 40 calendar days (counting Saturdays, Sundays and holidays) after receiving the employer’s decision at the final level of the internal 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).
What happens after an individual grievance has been referred to adjudication?
Acknowledgment letter and list of parties, intervenors and others
When the Board receives a notice of reference to adjudication, a letter is sent to each of the parties acknowledging receipt of the notice and requesting the other party to submit a copy of the decision that was rendered at each level of the internal grievance process. The acknowledgement letter also provides the parties with information required for continuing the process, such as the Board’s file number, and instructions on the next steps. The Board’s file number must be used on all subsequent documents and correspondence.
Based on the persons named in the individual grievance, the Board will create a list of parties, intervenors and other persons who may be affected by the proceeding (the "Board's list"), and will send copies of the notice of reference to adjudication and the individual grievance, as well as a copy of the Board’s list, to the persons whose names appear on this list.
Every individual grievance is automatically referred to mediation; however, mediation remains voluntary. If a party declines mediation in writing, or if the dispute cannot be resolved through this approach, the Chairperson may refer the matter to a formal hearing.
A party has 15 calendar days (this includes counting Saturdays, Sundays and holidays) from the date of the acknowledgment to notify the Board and all the parties of its intention not to participate in mediation.
Even if the parties refuse mediation at the outset, they may at any point of the adjudication process request that the matter be referred to mediation.
Allegation of discrimination
If the grievor wishes to refer to adjudication an individual grievance that raises an issue involving the interpretation or application of the Canadian Human Rights Act, he or she must give notice of the issue to the Canadian Human Rights Commission (CHRC) using Form 24 (NOTICE TO THE CANADIAN HUMAN RIGHTS COMMISSION), and send a copy of it to the Board, interveners and those on the Board's list, in accordance with section 92 of the Regulations. Grounds for discrimination under the Canadian Human Rights Act are: “… race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”.