Frequently Asked Questions about Grievances (labour relations matters)
- How does the grievance process under the Federal Public Sector Labour Relations Act (FPSLRA) work?
- What is involved in the formal grievance adjudication process?
- Where does the burden of proof lie in grievance adjudication cases?
- How long does it take to resolve a grievance case?
- What type of assistance does the Federal Public Sector Labour Relations and Employment Board (FPSLREB) give parties referring a grievance to adjudication?
- What is an expedited adjudication process and who can use it?
- What is my recourse if I am not satisfied with the decision on my grievance?
How does the grievance process under the Federal Public Sector Labour Relations Act (FPSLRA) work?
The grievance system under the Federal Public Sector Labour Relations Act (FPSLRA) is comprised of several elements.
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 FPSLRA 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 FPSLRA 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 FPSLRA 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 possible to refer grievances that raise issues under the Canadian Human Rights Act, except in relation to pay equity, and be awarded monetary relief as provided under the FPSLRA (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 public sector 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 FPSLREB.
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.
Fact sheets, practice notes, guides and the Federal Public Sector Labour Relations Regulations provide more details about the FPSLREB's grievance process.
What is involved in the formal grievance adjudication process?
The FPSLRA provides for the possibility to refer grievances to adjudication before the Federal Public Sector Labour Relations and Employment Board (FPSLREB), 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 FPSLREB if the grievance relates to:
- the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award; or
- a disciplinary action resulting in termination, demotion, suspension or financial penalty; or
- in the case of an employee of the core public administration, (i) demotion or termination for unsatisfactory performance or for any other reason that does not relate to a breach of discipline or misconduct, or (ii) deployment under the Public Service Employment Act without the employee's consent where consent is required; or
- in the case of an employee of a separate federal government agency listed in Schedule V of the Financial Administration Act that is designated by order for that purpose, a demotion or termination for any reason that does not relate to a breach of discipline or misconduct. (NOTE: The Canadian Food Inspection Agency and the Canada Revenue Agency are the only separate agencies to have been designated for that purpose, at this time).
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 FPSLREB 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 FPSLREB 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 FPSLREB 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 FPSLREB with a copy of the decisions that were provided to the grievor at each level of the grievance process.
The FPSLREB 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.
Where does the burden of proof lie in grievance adjudication cases?
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.
How long does it take to resolve a grievance case?
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 FPSLREB 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 FPSLREB'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.
What type of assistance does the FPSLREB give parties referring a grievance to adjudication?
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 FPSLREB 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 FPSLREB's labour relations registry 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.
What is an expedited adjudication process and who can use it?
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 FPSLREB. Individuals representing themselves may not apply for expedited adjudication.
What is my recourse if I am not satisfied with the decision on my grievance?
The Federal Public Sector 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 at the Federal Court of Appeal, by initiating judicial review proceedings. You may wish to contact Federal Courts 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 Appeal's website at http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fca-caf_eng 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.