Section 90 of the Public Service Staff Relations Act gives the right to
an employee as defined in Section 2 of that Act to present a grievance.
Section 90 of the Act reads in part as follows:
PART IV
GRIEVANCES
Right to Present Grievances
90. (1) Where any employee feels himself to be aggrieved
a) by the interpretation or application in respect of him of
(i) a provision of a statute, or of a regulation, by law, direction
or other instrument made or issued by the employer, dealing with terms
and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
b) as a result of any occurrence or matter affecting his terms and conditions
of employment, other than a provision described in subparagraph (a)(i) or
(ii), in respect of which no administrative procedure for redress is provided
in or under an Act of Parliament, he is entitled, subject to subsection (2),
to present the grievance at each of the levels, up to and including the final
level, in the grievance process provided for by this Act.
(2) An employee is not entitled to present any grievance relating to the
interpretation or application in respect of him of a provision of a collective
agreement or an arbitral award unless he has the approval of and is represented
by the bargaining agent for the bargaining unit to which the collective agreement
or arbitral award applies, or any grievance relating to any action taken
pursuant to an instruction, direction or regulation given or made as described
in section 112.
There are two limitations under Section 90 of the Act. Firstly, there must
be no other administrative procedure for redress in or under an Act of
Parliament and secondly, the grievor must have the approval of and be represented
by the bargaining agent if the grievance relates to the interpretation
or application of a provision of a collective agreement or an arbitral
award.
Pursuant to Section 90 and 91 of the Act, the final level of the grievance
procedure cannot be waived.
Section 91(1) of the PSSRA provides in part as follows:
91. (1) Where an employee has represented a grievance up to and including
the final level in the grievance process with respect to
(a) the interpretation or application in respect of him of a provision of
a collective agreement or an arbitral award, or
(b) disciplinary action resulting in discharge, suspension or a financial
penalty,
and his grievance has not been dealt with to his satisfaction, he
may refer the grievance to adjudication.
II. GRIEVANCE PROCEDURE
Section 99 of the Public Service Staff Relations Act empowers the Public
Service Staff Relations Board to establish regulations in relation to the
grievance procedure. It is important to note that the Public Service Staff
Relations Board Regulations and Rules of Procedure do not apply if they are
inconsistent with the grievance procedure established in the Collective Agreement
(see Section 99(2) of the PSSRA).
In consequence, the grievance procedure is governed by article M 38 of the
Master Agreement, and Sections 69 to 78 of the PSSRB Regulations and Rules
of Procedure.
III. ORGANIZATION OF THE GRIEVANCE FILE
While some grievances are settled at the complaint stage or at the first
level of the grievance procedure, this is unfortunately not true of the majority
of grievances. Where a grievance has not been resolved to the satisfaction
of the grievor at the first level, the grievance is usually transmitted to
successive levels of the grievance procedure until the matter has been satisfactorily
resolved or until all levels have been exhausted. As the grievor may be represented
at the various levels by up to five different representatives of the bargaining
agent, it is of the utmost importance that the grievance file be well documented
and well organized.
Grievance files that are incomplete, poorly organized or in a state of
disarray create delays in presenting the grievance, delay justice for the
grievor and decrease the chances of success within the grievance procedure.
In addition, in some cases these delays may create undue hardship for the
grievor especially in cases where loss of income or employment are involved.
Thus, it is very important that the representative at each level of the
grievance procedure ensure that the file is maintained in an orderly manner
to minimize potential problems and delays.
The following is a suggested method of organizing the grievance file in
order to ensure consistency at all levels and maximize the potential benefits:
1. Each grievance and its related documentation should
be maintained in file folders with the folders notated with the grievor's name, the grievance
number and the nature of the grievance.
2. CONTENTS
We suggest that the contents of the file be attached by ACCO fasteners.
(Appendix A)
2 (1) LEFT SIDE OF THE FILE FOLDER
On the inside left side of the file folder, the following documents/information
should be attached:
a) THE GRIEVANCE PRESENTATION FORM (Appendix B)
The grievance presentation form should be fully completed. Many grievance
presentation forms received are illegible; therefore we strongly recommend
that all information entered on the form be printed or typed. The completed
form should contain at least the following information:
i) grievor's full name;
ii) grievor's full address (including postal code);
iii) grievor's work and home telephone numbers;
iv) the grievor's classification (group and level) (This information indicates
to the representative which collective agreement applies.)
v) grievor's work section.
vi) grievor's work location.
b) TRANSMITTAL FORMS (Appendix C)
All grievance transmittal forms should be fully completed. (This information
is required when completing the Forms 32 when referring a grievance to adjudication
as the Forms 32 require that we enter the dates that the grievance was presented
at the first and final levels).
c) WAIVERS (Appendices D and E)
When a grievor elects to waive level two or three by virtue of Article M
38.03, or when any other levels have been waived by mutual agreement by virtue
of Article M 38.18, a statement signed by the grievor, the grievor's representative
and the employer's representative should be attached.
d) EXTENSION OF TIME LIMITS (Appendix F)
Where the time limits for presentation or reply have been extended by virtue
of Article M 38.17 of the Master Agreement, a statement to that effect signed
by the grievor, the grievor's representative and the employer's representative
should be attached.
e) REPLIES
The employer's reply to each level of the grievance procedure should be
attached with the most current reply on top.
2 (2) RIGHT SIDE OF THE FILE FOLDER
On the inside right side of the file folder, the following documents/information
should be attached:
a) TABLE OF CONTENTS (Appendix G)
The table of contents enumerates the documentary evidence and presentation
that will be attached to the right side. It is not necessary to include in
the table of contents the documents contained on the left side of the file.
To enable each union representative to add to the table of contents, the
documents should be listed in chronological order with the oldest source
document listed first. When the documents are organized in the file, however,
the documents should be placed in the file with the oldest document on the
bottom and the most recent source document on top. This too enables the grievor's
representative at successive levels to add documentary evidence without having
to reassemble the grievance file each time information is received. The table
of contents should identify the following:
i) the nature of the document;
ii) the author
iii) the addressee
iv) the object
v) the date
b) SHORT BRIEF OF GRIEVANCE PRESENTATION
Following information should be included in this brief:
i) grievor's full name;
ii) grievor's job title;
iii) representative's name and work and home phone numbers;
iv) facts pertinent to the grievance;
v) arguments advanced by the grievor and/or grievor's representative;
vi) pertinent documentary evidence (quote policies, procedures, articles,
legislation, etc.);
vii) witnesses' names, addresses, phone numbers and relationship, if any,
to the grievor (i.e.) co worker, doctor, etc.);
viii) witnesses' statements, if any;
ix) grievor's statement (Appendix H); and
x) employer's position.
Often, the employer's reply does not reflect his initial position.
c) EVIDENCE
Evidence referred to in the brief should be included in the file. This documentary
evidence could be:
i) written statements;
ii) related correspondence;
iii) policies;
iv) written procedures;
v) copies of claims, receipts, etc.; or
vi) any other relevant documents.
(This documentary evidence should also be attached in chronological order
with the most current documentation on top.)
3. GROUP GRIEVANCES
The following procedure should also be followed for organizing group grievances:
a) Where the Department has assigned one grievance number for the group
grievance(s), a list of grievors in strict alphabetical order should be attached
to the grievance presentation form and to the right side of the file.
b) Where the Department has assigned individual grievance numbers, a list
of grievors in numerical order should be attached to the right side of the
file.
IV. TIMELY REFERRAL OF GRIEVANCES
When transmitting a grievance to each successive level, the following should
be strictly adhered to:
1) the file should be organized as described in number 2 above.
2) the file should be photocopied in the event that the file is lost while
routing or should the Grievor's representative at the various levels require
information concerning a specific document or need to refer to a specific
document.
3) the original file should be immediately referred to the representative
at the next level by hand, mail or courier with a dated covering letter.
V. GENERAL
Copies of this proposed procedure should be provided to representatives
responsible for grievance representation at all levels of the grievance procedure.
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