Individual Grievances Referred to Adjudication Under Section 209 of the Federal Public Sector Labour Relations Act
A guide for parties representing themselves
The purpose of this guide is to provide parties representing themselves with information on the process for referring an individual grievance to adjudication under section 209 of the Federal Public Sector Labour Relations Act (the FPSLRA) and for hearings before a panel of the Board. This guide is only an informal tool, which should be used in conjunction with the FPSLRA and the Federal Public Sector Labour Relations Regulations (the Regulations). The FPSLRA can be accessed on the Department of Justice's Web site at http://laws.justice.gc.ca. Both the FPSLRA and the Regulations can be accessed on the Web site of the Federal Public Sector Labour Relations and Employment Board (the FPSLREB) at www.fpslreb-crtespf.gc.ca, under Legislation.
What is the FPSLREB?
The FPSLREB is an independent quasi-judicial tribunal mandated by the Federal Public Sector Labour Relations Act to administer the collective bargaining and grievance adjudication systems in the federal public service. It is also mandated by the Parliamentary Employment and Staff Relations Act to perform the same role for the institutions of Parliament. Its commitment to resolve labour relations issues in an impartial manner benefits Canadians through the smooth delivery of government programs and services.
Who chairs the hearings?
Hearings relating to individual grievances are usually heard by a single Board member appointed by the Chairperson to sit as a panel of the Board.
Referring an individual grievance to adjudication
Is there a difference between "presenting" an individual grievance and "referring" an individual grievance to adjudication?
Yes, there is a difference between "presenting" an individual grievance and "referring" an individual grievance to adjudication.
"Presenting" an individual grievance involves filing an individual grievance internally with the employer. This must be done in accordance with section 208 of the FPSLRA. Only after all levels of the internal individual grievance process have been completed can an employee "refer" to adjudication, in accordance with section 209 of the FPSLRA, an individual grievance that has not been dealt with to the employee's satisfaction.
Can I represent myself?
An employee may not present, under section 208 of the FPSLRA, 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.
An employee may present an individual grievance relating to other matters without the approval of the bargaining agent.
An employee who has been self-represented during the internal individual grievance process may continue to represent himself or herself once the grievance has been referred to adjudication in accordance with section 209 of the FPSLRA.
What types of individual grievance can I refer to adjudication
Four types of individual grievances can be referred to adjudication. They are:
- Grievances that relate to the interpretation or application of a provision of a collective agreement or an arbitral award;
- Grievances that relate to a disciplinary action resulting in termination, demotion, suspension or financial penalty;
- Grievances that relate to demotion or termination that does not result from a disciplinary action;
- In the case of an employee in the core public administration, grievances that relate to deployment without the employee's consent, where consent is required.
How do I refer an individual grievance to adjudication?
A grievor who wishes to refer an individual grievance to adjudication under section 209 of the FPSLRA must do so in accordance with section 2 of the Regulations, which describes the procedure to follow when filing initiating documents.
Section 89 of the Regulations also requires that the reference to adjudication be filed in duplicate with the FPSLREB. The grievor can use, depending on the nature of his or her grievance:
- Form 20 (REFERENCE TO ADJUDICATION OF AN INDIVIDUAL GRIEVANCE: Interpretation or application of a provision of a collective agreement or an arbitral award); or
- Form 21 (REFERENCE TO ADJUDICATION OF AN INDIVIDUAL GRIEVANCE: Termination, Demotion, Suspension, Financial Penalty or Deployment).
- Note: Form 20 requires the bargaining agent's support before it can be presented.
The above mentioned forms are available on the FPSLREB's Web site.
What happens after an individual grievance has been referred to adjudication?
Opening the file
When the FPSLREB 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 individual grievance process. The acknowledgement letter also provides the parties with information required for continuing the process, such as the FPSLREB's file number, and instructions on the next steps. It is important that the FPSLREB's file number be used on all subsequent documents and correspondence.
Based on the persons named in the individual grievance, the FPSLREB will create a list of parties, intervenors and other persons who may be affected by the proceeding (the "Board's list"). The FPSLREB will send copies of the notice of reference to adjudication and the individual grievance to the persons whose names appear on this list. The FPSLREB will also send to everybody on that list a copy of the Board's list.
- Please note that any document submitted subsequently to the notice of reference to adjudication shall be filed with the FPSLREB. The party filing a subsequent document (except for Applications for a summons) shall provide a copy to every person whose name appears on the Board's list, unless he or she has notified the FPSLREB in writing that he or she does not wish to receive a copy of subsequent documents.
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 to notify the FPSLREB of its intention not to participate in mediation. A party's notice of intention is a subsequent document and must be copied to every person whose name appears on the Board's list.
Even if the parties refuse mediation at the outset, they may at any point request that the matter be referred to mediation. If the parties jointly file with the FPSLREB a request to have the grievance referred to mediation, the adjudication of the individual grievance will, in most cases, be immediately put in abeyance and a mediation date scheduled.
Canadian Human Rights Commission
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 FPSLREB, interveners and those on the Board's list, in accordance with section 92 of the Regulations.
If a party has submitted a Form 24 to the CHRC, the CHRC may, as it considers appropriate, file with the FPSLREB a Form 25 (Notice of Intention of the Canadian Human Rights Commission), in which it will state if it intends to make submissions at the hearing regarding the issue that has been raised in relation to the interpretation or application of the Canadian Human Rights Act.
Preparing for the hearing
As a rule, the process for a hearing before a panel of the Board is the same as that before a court, though somewhat less formal. The parties may file supporting documents as evidence and examine and cross-examine witnesses. Hearings give them an opportunity to present their arguments in order to establish their allegations.
Scheduling the hearing
The FPSLREB usually tentatively schedules hearing dates in labour relations matters four months in advance. The parties will be contacted to confirm their availability.
Notice of hearing
When the Chairperson refers an individual grievance to a panel of the Board, a notice of hearing is sent to each person whose name appears on the Board's list, informing him or her of the date, time and place where the hearing will be held. A notice of hearing will normally be sent out one month prior to the hearing date.
Postponement and withdrawal
The Board has established a Policy on Postponements of Hearings. It outlines the procedure for requesting the postponement of a scheduled hearing.
A request for a postponement should be made as soon as possible once hearing dates have been provided.
The Board will only grant a postponement where clear, cogent and compelling reasons exist. The following will generally not be considered sufficient cause to grant a postponement:
- The parties’ mutual desire for a postponement;
- The fact that the matter has not previously been postponed;
- The parties indicate that the case will probably settle if a postponement is granted;
- A witness, party, or counsel is unavailable (without exceptional circumstances) after being provided due notice.
Sometimes, the parties settle the individual grievance among themselves before, or even at, the hearing. It is then up to the grievor to inform in writing the FPSLREB that the individual grievance has been resolved and is being withdrawn, or is in the process of being resolved. If the hearing has started or is about to start (on that same day), the parties should inform the panel of the Board hearing the case about the withdrawal before informing the FPSLREB in writing.
English or French?
Hearings may take place in English or French. However, they are normally held in the language in which the grievance presentation was filed. Simultaneous interpretation services, when needed, are provided by the FPSLREB, but the parties must notify it in writing of such a requirement at least three weeks ahead of time. The FPSLREB assumes all of the costs associated with this service.
At the written request of the grievor and with sufficient notice, the language of the hearing can be other than the language of the grievance presentation.
A party that wants to call a witness to testify and thinks that the witness will attend only if legally required to do so can request (in writing and in detail) a summons. It is up to this party to explain why this witness is essential to the presentation of its case. If a summons is issued, the party that intends to summon the witness must inform the witness that he or she is being called to testify at a hearing by serving him or her with the document sufficiently in advance of the hearing. All costs related to the service of a summons are paid by the party requesting the summons.
Furthermore, witnesses who are summoned by a party are entitled to compensation if they attend the hearing (see section 248 of the FPSLRA and section 41 of the PSLREBA). It is up to the party that summoned them to pay this compensation. The party must ensure that the amount is equal to that to which the witnesses would be entitled if summoned to attend before the Federal Court.
As well, the party that summons a witness must pay ahead of time, where applicable and in accordance with the Federal Courts Rules, any travel expenses that the witness may incur.
The parties are responsible for notifying in writing the FPSLREB sufficiently in advance of any needs or services that they will require before or during the hearing (for instance, that the building where the hearing is to take place be accessible to people with mobility disabilities).
Technical and procedural issues
The hearings are not recorded as a rule, and no minutes are prepared. Hence, it is important that the parties take notes. The panel of the Board will however take notes of the evidence and submissions. The notes taken by the panel of the Board are not accessible to the parties or the general public without the consent of the person who made them.
Swearing an oath
A witness who is called to testify at a hearing must swear an oath or solemnly affirm to tell the truth for his/her testimony to be admitted as evidence. Individuals asked to testify may swear on the Bible or another sacred text or object, or promise to tell the truth.
Please advise the FPSLREB in writing at least two weeks in advance if a specific sacred text is required for the hearing. Witnesses may also bring their own sacred text or object.
Failure to attend
If a person fails to attend a hearing or any subsequent session of that hearing, the panel of the Board may continue the hearing and decide on the matter without further notice to that person.
If a party raises an objection at the hearing, the panel of the Board will ask the other party for its position on the objection. The objecting party will then be given an opportunity to respond to the other party's position before a decision is rendered on that matter. The decision on some objections may be reserved by the panel of the Board and dealt with in the final decision.
An application may be made to the panel of the Board at a hearing for a decision on an issue concerning the procedure which does not touch on the substance of the case. An application may be presented in writing or, more commonly, orally at the hearing. When a party files such an application, it must provide its reasons for doing so. The other party then provides its position on the reasons, to which the party making the application then responds.
For instance, an application could be made to have the following day's hearing start later than indicated on the notice of hearing.
If one of the parties contests the panel of the Board's jurisdiction for hearing an individual grievance, after considering relevant evidence and submissions, the panel must be satisfied that there is jurisdiction before ruling on the individual grievance. The panel may also reserve decision on the question of jurisdiction and proceed with the hearing, based on the merits of the case (a common practice for jurisdiction-type questions).
The conduct of the hearing
Proper behaviour is expected from the participants. As a sign of respect, when the panel of the Board enters or exits the room, it is customary, however not required, for participants to rise. As well, special places are assigned to the participants in the room depending on their role in the case (grievor, visitor, witness, etc.) (See Appendix 1).
Opening statement and preliminary matters
At the beginning of a hearing, the panel of the Board makes an opening statement and takes this opportunity to explain the reason why the parties are there and the basic rules for the hearing. The parties are then asked whether they have any preliminary questions that they would like to bring to the panel's attention. This is when the parties can raise an objection concerning the panel's jurisdiction for hearing the individual grievance, request the exclusion of witnesses from the hearing or request modifications or clarifications on the conduct of the hearing.
Afterwards, each party may make an opening statement, during which it can provide a summary or overview of what it intends to prove and how it intends to do so and the remedy or relief sought. The order of presentation of the opening statements is the same as that of the presentation of evidence and the examination (see section on Presentation of evidence and examination of witnesses). It should be noted that the party that comes second may wait until it presents its case to make its opening statement, in other words, before the evidence is presented.
Presentation of evidence and examination of witnesses
Generally, the grievor will proceed first with the presentation of his or her evidence. However, in individual grievances that relate to a disciplinary action, the other party is the one with the burden of proof and will proceed with presenting its evidence first.
The party that presents its evidence first is automatically the first one to examine its witnesses. During its examination-in-chief, this party shall aim to present all of the information that will help support its case. Then, the other party examines the first party's witnesses: this is the cross-examination. It will then try to contradict the evidence presented or demonstrate that the merits of the case are unfounded. After the cross-examination, the party that was the first to examine its witnesses will have an opportunity to re-examine its witness to address any new point raised during the cross-examination. Then, the other party will have a chance to examine its own witnesses, to present its evidence and, as before, this will be followed by a cross-examination and re-examination.
It should be noted that all persons, including the grievors who wish to testify, must swear an oath or make a solemn affirmation to tell the truth.
How do I present my evidence and examine my witnesses
Essentially, the presentation of evidence involves examining witnesses and filing documents or items applicable to the dispute. Documents and other items presented as evidence are generally provided through a witness or with the other party's agreement. A copy of such documents must be provided to each of the parties, to the witness, and to the single adjudicator or board of adjudication. The documents must be filed in both official languages if they exist in both languages. To the extent possible, documents should be in their original form and not edited.
It is not necessary to present the following documents as evidence, as they are already on file:
- The decision rendered at each level of the individual grievance process.
- Form 20 (Notice of Reference to Adjudication of an Individual Grievance - Interpretation or application of a provision of a collective agreement or an arbitral award).
- Form 21 (Notice or Reference to Adjudication of an Individual Grievance - Termination, demotion, suspension or financial penalty, or deployment).
- Form 24 (Notice of the Canadian Human Rights Commission).
It is important that questions asked during the main examination-in-chief of a witness be kept short and open to enable the witness to be free to recount the facts relative to the matter. This means that leading questions, where the witness is guided towards an answer, should not be used. However, there is nothing to prevent the parties from asking leading questions at the beginning of a witness's examination-in-chief to establish the latter's identity or during cross-examination to focus the witness's answer.
How do I prepare my arguments
When parties present their arguments, they can also present, in support of their case, the applicable case law, previous FPSLREB decisions or those of adjudicators. Research is very important in preparing the arguments. The parties may consult the FPSLREB's Web site, where they can find previous decisions, the different statutes under its jurisdiction and other useful links.
During the presentation of arguments, the parties speak in the same order as for the presentation of evidence. By this time, the the panel of the Board knows all of the elements or relevant facts of the dispute as they were presented and hears the parties' arguments.
This is when the parties refer to previous FPSLREB decisions and those of adjudicators, statutes or case law to support their arguments.
The FPSLREB's (or its predecessors') decisions are available at: https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/en/nav.do
If a party wishes to make reference to a previous decision, statute or case law, it must ensure that a copy is provided to each party and to the single adjudicator or board of adjudication.
End of hearing
After the parties have presented their arguments, the hearing will come to a close.
If more time is needed to continue the hearing, the panel of the Board will specify the date, time, place and terms of its continuance.
What happens after the hearing?
The hearing gives the panel of the Board an opportunity to hear the parties' arguments, submissions, and all the evidence required to understand the dispute. The panel must then render a decision in writing. Normally, the single adjudicator or board of adjudication tries to render a decision within four months of the hearing.
The FPSLREB's Policy on Openness and Privacy explains why information filed with the FPSLREB is generally available to the public and why it could be reported in a decision posted on the FPSLREB website and distributed to publishers.