
	Friday March 12, 2010

GRIEVANCES

One of the foremost objectives of the Alliance is to protect the rights and interests of employees of the Government of Canada in matters of employer employee relationship.

Therefore, although an Appeal System existed for a number of years it was quite restrictive and the Alliance, as well as its predecessors, fought for many years for systematic method of dealing with ANY complaint that an individual or group of individuals may have in connection with their terms and conditions of employment.

Now, thanks to the Public Service Staff Relations Act federal employees have the right to insist upon having a formal hearing of their differences with management. Section 90 of the PSSR Act provides that every employee, who has a grievance, shall have access to a formal grievance procedure for consideration of his complaint. Provision is also made for employees to have assistance from a representative of his bargaining agent in the preparation and presentation of his grievance.

Let us now consider what a grievance is and what it is not. Should an employee feel he has been unjustly treated by a representative of management, he has grounds for a grievance. Similarly, if an employee feels that his agreement or any Legislation, Act or Regulation has been violated or wrongly interpreted he has grounds for a grievance.

By and large then it would seem that a grievance is any complaint, in writing, by an employee against any violation or mis application of the terms and condition of his employment that he considers to be within the ability of the employer to correct.

There is one big exception to the foregoing generality. Where an administrative procedure for redress is provided in or under an Act of Parliament, a problem cannot be the subject of a grievance. The foremost example of this is the appeal. Under the PSE act an employee has the right to appeal

(a) An appointment by closed competition,
(b) An appointment without competition, or
(c) Notice of intended release or appointment to a lower position on the grounds of incompetence or incapacity.

It should be noted that a grievance can be presented against the results of an open competition as there is no other administrative procedure for redress.

An employee may present a grievance on behalf of "himself" or "himself and one or more other employees". However a steward cannot file a grievance on behalf of an employee, the employee must do it himself. This is not to be construed as inferring that the steward cannot do all the preparation and even the presentation on behalf of the employee but it must be the employee's "John Henry" that appears on the grievance form as the grievor.

In addition to the grievance process outlined in the Public Service Staff Relations Board Regulations we now have grievance processes in all collective agreements negotiated to date. The grievance process in your collective agreement takes precedence over the one in the PSSRB Regulations.

(a) It is limited to not more than four levels (exclusive of adjudication)
(b) Time limits must be stipulated for each level.
(c) Regardless of the level the grievance must be submitted to the officers specified by the department to receive grievances in your particular work location.

Many of us consider the grievance process to be five levels rather than four. The first being the "complaint" level which is the period from when the employee brings it to your attention until the formal presentation of the written grievance.

This "complaint level" is when the problem should be discussed with the supervisor and is considered most important by many people. Management will expect you as union officials to eliminate frivolous complaints and furthermore an employee's problem can very often be readily resolved by his supervisor. Therefore although it is not obligatory, the representative should consider with the concurrence and in the presence of the grievor, discussing the problem with the supervisor prior to presenting a grievance.

This action could result in the speedy settlement of complaints whereas unresolved grievances allow for further actions being taken without regard to the welfare of employees. Naturally not all grievances are the results of action or inaction on the part of supervisors, but others. If the individual rights or welfare of one employee can be disregarded it is a short step to disregarding the rights and privileges of all.

The employer has equally strong reasons for desiring prompt and efficient settlement of employees' complaints. An employee may feel that he has been unfairly dealt with, actions may have been taken without explanation and as a result he has suffered a real or imagined injustice. No matter what the problem if it is left unresolved it could result in the lowering of morale, reduction of efficiency and unrest. One talkative, and unhappy grievor can damage the image of the Public as a whole. So, apart from any consideration of employees' rights or welfare, the employer has a vested interest in resolving grievances as rapidly as possible.

Possibly then the Grievance Process is perhaps best described as a funnelling process where less contentious grievances are gradually filtered out and finally only those which have cost an employee money or his job or suspension, etc. remain to be resolved by the Assistant Deputy Minister or, if applicable, by an adjudicator.

You will recall that the grievance process was limited to a maximum of four levels exclusive of the complaint stage (discussing with supervisor). These four grievance levels are within the department culminating at the Assistant Deputy Minister level. His decision is final and binding on both parties.

However Section 91 of the PSSR Act provides that in certain circumstances a grievance may move beyond the level of the departmental head and can be brought to the attention of a neutral third party known as an adjudicator. The adjudicator will hear the arguments of both sides and then will make a decision which will be final and binding on both parties.

In preparing a grievance it is important for the steward to remember that the object is to get an acceptable solution to the problem as quickly as he can, as simply as he can and with as little furor as possible. It should not be his intention to embarrass management or to make them appear negligent or inefficient. Both the steward and the grievor still have to work with these same bosses and if the steward can get a settlement that the grievor is prepared to accept without antagonizing anyone he has done an excellent job.

In preparing a grievance the steward first interviews the grievor. Just ask him to tell his story carefully and write everything down. Then interview any witnesses and get a signed statement from them. A signed statement is a safeguard against them changing their testimony later.

Generally speaking, while people will not tell you something that is not true, there is a tendency to ignore facts which do not support their argument. You should therefore talk to management and get their side of the story. It is not necessary to agree with them but having asked for their side of the story the steward should have the courtesy to hear them out.

The steward must remember that he is looking for a solution on the basis of which is right rather than who is right. The minute he begins thinking on the basis of who is right he is questioning someone's job efficiency and that person can be expected to react most unfavorably to the steward's presentations.

In preparing a grievance it is vital to establish the facts, without bias or prejudice, as well in advance as possible. You win or lose the grievance when you prepare your case, when you are digging out the facts, when you check out vague points, interview witnesses, discuss with management, look over the equipment used or the work location etc. A grievance hearing is not an oratorical contest nor a shouting match and the decision is based on facts.

This may not always be true at the lower levels as the supervisor may quite well stick up for what he has done because his job efficiency could be at stake, this can happen no matter how diplomatic the steward may have tried to be in presenting the grievance. This condition does not occur so readily at the higher levels where the decision makers are, generally speaking, more remote from the employees concerned. Most of these people are honorable and are interested in the welfare of their staff as well as an efficient operation. Furthermore their job efficiency is not in question and it is easier to render an impartial decision.

The PSAC Steward's Training Course stresses the use of the six W's in preparing a grievance.

First WHO is involved? Get the name of the grievor, the names of witnesses and that of the supervisor concerned.

Next you want to know WHAT happened. Make sure you get the details of exactly what happened.

Now WHEN did it happen. The time and frequency should be as detailed as necessary.

WHERE did it happen, include distances between points if necessary.

WHY does the grievor feel he has a grievance. What Act, Regulation etc. has been violated.

Finally what do you WANT done to make sure that the grievor does not suffer from this unwarranted action by management.

Having gathered all the facts the steward should prepare a working brief. This should contain a statement, by the grievor, of events in chronological order and include signed statements of witnesses, any available documentary evidence and/or managerial admissions, a summary of your investigation and your opinions on the case.

Then make a resumé of the strong points favoring the grievor and management respectively. Next play the Devil's Advocate and establish arguments for management's case. Having done this you should be able to knock their case out before they can make it.

Finally set out the details of how you intend to present your case at a hearing. There is no substitute for preparation. If you proceed unprepared without guideline your chances are very slim.

The grievance itself is composed of three separate parts. The first is the grievance presentation form, the second is the grievance transmittal form and the third is the grievance decision form. These are printed multiforms in the required number of copies and interleaved with carbon paper.

The Grievance Presentation Form is only prepared once. When it is presented at the first level it is presented without a grievance transmittal form but at the second and subsequent levels a transmittal form must accompany it. A new transmittal form is required for each level. A Grievance Decision form is completed by management at each level. The Grievor is required to acknowledge receipt of the decision on this form.

There are two schools of thought as to the completion of section 1 (b) of the Grievance Presentation Form. On the one hand it is suggested that it should be just as simple as you could possibly write it. Just state what has happened. Simply say for example that the grievor was denied a certain amount of overtime for working on a certain date which is contrary to article so and so of the agreement. Conversely it is suggested do not try to withhold facts until the second or third level, include them all at the outset.

In our union we choose to take the approach that the facts should be brought out at the level in the grievance process where the representative of management has the authority to grant the redress that you are asking for. This could and indeed frequently is at the first level.

Immediately the question comes to your mind that I have just told you that the grievance presentation form is only prepared once so if you didn't include all the facts in the first place how do you stick them in now at say, the third level.

The answer is you don't have to. A grievance is normally considered by management on the basis of documentary evidence submitted however if you consider further explanation or elaboration necessary you can request a hearing. A request for a hearing does not automatically guarantee hearings at subsequent levels. A separate request must be made at each level.

Make a record of the defense put forward by management at a hearing including any admission at facts and any documents produced. These might prove to be invaluable later.

In completing section 1(c) of the grievance presentation form state very carefully, using as many words as necessary but being careful not to overdo it to the point of confusion, say exactly what you want done for the grievor.

If you simply say you want assurance that it won't happen again that is exactly what you will get. If you ask simply that the grievor be reinstated, if he has been suspended, he will be reinstated but that is all. He won't get paid for the time he has been off duty unless you ask for it. So if you want the employee reinstated from the date the suspension was imposed without loss of salary, allowances or continuity of service for goodness sakes say so.

Usually in discussing grievances there is a tendency to generalize as if all grievances were identical and subject to the same conditions whereas there are what we might call three classes or types of grievances.

(a) A grievance relating to the interpretation or application of a collective agreement or arbitral award. For this type of grievance the employee must have the approval of and be represented by the bargaining unit.
(b) A classification grievance, which will be explained a little later and
(c) All other grievances.

Now let's talk about adjudication. Unfortunately the Act stipulates that only certain grievances can proceed to adjudication. If you grieve on the interpretation of the collective agreement your grievance may proceed to adjudication but remember the adjudicator's decision is based on what the agreement says and not on what you think it says or what you think it intended to say.

You can also proceed to adjudication regarding disciplinary action which result in discharge, suspension or financial penalty. Disciplinary action is a much broader term than many people think and there does not have to be punishment in the literal sense, to constitute disciplinary action. Anytime the employer offers a negative judgment on the competence, ability or qualifications of an employee and as a result imposes any form of sanction that is disciplinary action.

Separation of service is referred to in such words, it speaks only of discharge. Therefore a more contrary assertion by the employer that an employee was not discharged but rather laid off or rejected is of no consequence and the grievance can proceed to adjudication.

Suspension is another case which can proceed to adjudication however if an employee has been suspended pending the results of an investigation it is not necessary to await the results of the investigation you can present a grievance up to adjudication on the suspension itself.

Next we have financial penalty. Whereas we said earlier that disciplinary action is perhaps a broader term than one might think financial penalty is possibly more restrictive than one might assume. Penalty is defined as a punishment and more particularly a fine or forfeiture of a sum of money for a breach of order, regulations or rules. So the fact that you have suffered a financial loss does not infer that you suffered a financial penalty. The fact that you were not promoted from CR2 to CR3 may have cost you money because of possible financial outlay in anticipation of the promotion but it does not necessarily mean that this is a financial penalty. There is only a financial penalty when something is taken away from you.

Let us now for a few minutes discuss the Classification Grievance Process. According to the PSSR Act nothing therein shall be construed to affect the right or authority of the employer to determine the organization of and to assign duties to and classify positions in the Public Service.

Briefly this means that classification is the employer's prerogative. Nevertheless an employee who is unhappy about his classification has a right to grieve. Because of the nature of such grievances a special procedure has been established for processing them.

An employee who has a complaint against the classification of his position or who considers that his position has been wrongly allocated to a particular group or class or improperly assigned to a particular level in a group or grade in a class can present a classification grievance.

If an employee wishes to present a classification grievance he should:

Ask his supervisor for a copy of the position description covering his duties and point rating.
Present his classification grievance on the standard grievance form and transmittal slip within 25 days, exclusive of Saturday, Sunday or Designated Holidays, of the date he received his position description.
The grievance should explain why, he considers himself to be under classified. It could be because:
1. He feels the duties he is performing and his responsibilities are classified too low in relation to other positions at the same level.
2. He thinks that significant duties and/or responsibilities have not been included in his position description.
3. He feels that the classification standards have not been properly applied to his position and consequently the point rating it too low.
Write directly to the Union of Taxation Employees if he wishes PSAC assistance in preparing and presenting his grievance. He should request this assistance as soon as he can after obtaining his position description and prior to filing his grievance.
If he has requested PSAC assistance he should supply the Union office with:
1. A complete position description, specifications and point rating, where applicable, signed by both the grievor and his supervisor. The position description should describe the duties being performed as well as how and why they are being performed.
2. An organization chart showing how the position relates to others both senior and junior. A rough sketch will do.
3. The supervisor's comments on significant aspects of the position would be helpful, if available.
4. When two or more positions have been grouped together "jobbed" and given the same evaluation the job number and the number of positions so grouped should be advised.
He presents the grievance presentation and grievance transmittal forms to his supervisor or local officer in charge and obtains a receipted and dated copy of the transmittal slip from him.

We must also keep in mind that there are time limits for presenting grievances and receiving replies. It is important that these be observed. Many a sound grievance has been disallowed because the time limit has expired. The time limits are outlined in the agreements and in the Public Service Staff Relations Board Regulations. Remember the time limits outlined in your agreement take precedence over those outlined in the PSSRB Regulations.

In the case of a classification grievance the employee has 25 days, from the date he received his position description to present his grievance. The deputy head has sixty days in which to reply.

Now for a short resumé. First what is a grievance? A grievance is a written complaint by an employee against management where no other administrative procedure for redress exists.

Who are grievances presented to? The grievance process provides for a maximum of four levels with the fourth level, the assistant deputy head, being the final and binding decision however the grievance is always presented to the supervisor or local officer in charge irrespective of the level.

Where the grievance relates to the interpretation of a collective agreement or arbitral award or disciplinary action resulting in discharge, suspension or financial penalty it may proceed one step beyond the assistant deputy head to adjudication.

Remember the six W's. WHO is involved? WHAT happened? WHEN did it happen? WHERE did it happen? WHY is it a grievance? WANT remember to ask for redress in full.

Throughout the grievance process we must keep the time limits in mind not only those for presenting a grievance but those for reply by management.

In closing it should be pointed out that any of you who are not registered as stewards should arrange, through your local, for this to be done. You will then receive the PSAC steward's kit which contains Acts, Regulations and other PSAC handouts which are excellent and, I would venture to say, necessary reference material for officials of locals. In addition to getting the material you should try and attend a steward's training course.

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