Clause 18.21 of the collective agreement reads as follows:
Where an employee has presented a grievance up to and including the Final Level in the grievance procedure with respect to:
-
the interpretation or application, in respect of him or her, of a provision of this Agreement or a related arbitral award, or
-
disciplinary action resulting in termination of employment pursuant to paragraph 51(1)(f) of the Canada Revenue Agency Act, suspension or financial penalty,
and the employee’s grievance has not been dealt with to his or her satisfaction, he or she may refer the grievance to adjudication in accordance with the provisions of the Federal Public Sector Labour Relations Act and Regulations.
The adjudication process is also referred to throughout sections 206 to 238 of the FPSLRA and sections 89 to 106 of the FPSLR Regulations.
Adjudication is a procedure provided for under legislation by which certain types of grievances may be referred to a single adjudicator or a panel of an independent and impartial third party, the Federal Public Sector Labour Relations and Employment Board. When a grievance is properly referred to adjudication, a hearing is usually scheduled in the geographic proximity of where the grievor works. The adjudication hearing is a quasi-judicial process where the representatives of and counsel for the employer as well as the PSAC for policy, group or individuals (for collective agreement or arbitral award issues or for disciplinary matters) and the grievor and/or his/her representative (for disciplinary matters) are invited to submit evidence, examine and cross-examine the testimony of witnesses and present arguments in support of their respective positions. Although the adjudication process is not truly judicial in nature, the adjudicator appointed by the FPSLREB does have judicial rights conferred upon him/her by virtue of by virtue of Section 16(d) and 226 of the FPSLRA and Section 20 to 23 of the FPSLREB Act.
FEDERAL PUBLIC SECTOR LABOUR RELATIONS ACT
Powers
Powers of adjudicator
226. (1) An adjudicator may, in relation to any matter referred to adjudication, exercise any of the powers set out in paragraph 16(d) of this Act and sections 20 to 23 of the Federal Public Sector Labour Relations and Employment Board Act.
Powers of adjudicator and Board
(2) An adjudicator or the Board may, in relation to any matter referred to adjudication,
(a) interpret and apply the Canadian Human Rights Act and any other Act of Parliament relating to employment matters, other than the provisions of the Canadian Human Rights Act that are related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any;
(b) give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act; and
(c) award interest in the case of grievances involving termination, demotion, suspension or financial penalty at a rate and for a period that the adjudicator or the Board, as the case may be, considers appropriate.
16 The Board has, in relation to any matter before it, the power to (…)
(d) subject to any limitations that the Governor in Council may establish in the interests of defense or security, enter any premises of the employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliance or article in the premises and require any person in the premises to answer all questions relating to the matter before it;
FEDERAL PUBLIC SECTOR LABOUR RELATIONS AND EMPLOYMENT BOARD ACT
Powers of Board
20 The Board has, in relation to any matter before it, the power to
(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;
(b) order pre-hearing procedures, including pre-hearing conferences that are held in private, and determine the date, time and place of the hearings for those procedures;
(c) order that a pre-hearing conference or a hearing be conducted using any means of telecommunication that permits all persons who are participating to communicate adequately with each other;
(d) administer oaths and solemn affirmations;
(e) accept any evidence, whether admissible in a court of law or not; and
(f) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant.
Frivolous matters
21 The Board may dismiss summarily any matter that in its opinion is trivial, frivolous, vexatious or was made in bad faith.
Determination without oral hearing
22 The Board may decide any matter before it without holding an oral hearing.
General power to assist parties
23 The Board or a member of the Board or an employee of the Administrative Tribunals Support Service of Canada who is authorized by the Board may, if the parties agree, assist the parties in resolving any issues in dispute at any stage of a proceeding and by any means that the Board considers appropriate, without prejudice to the Board’s power to determine issues that have not been settled.
At the end of the Adjudication hearing, the adjudicator will adjourn the process and return to his/her head office where he/she will review the proceedings as transcribed in his notes and as recorded and render a written decision, taking into consideration such things as the provisions of the collective agreement, the spirit and intent of the collective agreement, the positions advanced by the parties and the relevant jurisprudence. The written decision by the Adjudicator must contain the following items:
- a summary statement of the grievance;
- a summary of the representations of the parties;
- the decision on the grievance; and
- the reasons for the decision.
For all intents and purposes, the decision is final and binding on all of the parties. There are provisions, however, for challenging the decision of the adjudicator in Federal Court if:
- the adjudicator failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise his/her jurisdiction; or
- the adjudicator erred in law in making his/her decision, whether or not the error appears on the face of the record; or
- the adjudicator based his/her decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before him/her.
Challenges to the Federal Court are very complex in nature and very costly and as a result, this decision is best left in the hands of the PSAC Legislative Officers.
As we discussed at the beginning of this module, clause 18.21 of the collective agreement and the FPSLRA define the types of grievances that may be referred to adjudication. However, clause 18.22 of the agreement provides for two more conditions before a grievance may be referred to adjudication.
While the grievor himself/herself may refer a discharge or disciplinary grievance resulting in financial penalty to adjudication, a grievance against the collective agreement or an arbitral award may not be referred unless:
(1) The PSAC signifies its approval of the reference to adjudication;
and
(2) agrees to represent the grievor in the adjudication proceedings.
The main reason why this provision is contained in the collective agreement and in the FPSLRA is that collective bargaining and the collective agreement is the responsibility of and under the jurisdiction of the bargaining agent and not the individual employee. As this responsibility belongs to the PSAC, it has the obligation to ensure that unreasonable or poor grievances are not referred as negative or detrimental decisions may be rendered, creating poor jurisprudence for the rest of the employees.
In order to meet our obligations in this regard and also to ensure that the grievor's interests are protected, the Labour Relations Officer at the National Office examines very closely the grievances referred to him/her at the final level. Upon receipt of the final level reply, the Labour Relations Officer reviews the grievance in conjunction with the reply and if the grievance relates to the collective agreement or an arbitral award, issues a written or verbal recommendation as to whether or not the grievance should be referred. The Union of Taxation Employees has adopted a policy of recommending referral for all disciplinary or discharge grievances.
If it is recommended that the grievance be referred to adjudication, the National Office will send to the grievor the necessary forms, Notice of Reference to Adjudication with instructions for the grievor to complete and return the forms. The PSAC must also complete Form 22 for the referral of a Group Grievance and Form 23 for referral of a Policy Grievance.
Upon receipt of the completed form from the grievor, the UTE National Office will forward the complete grievance file along with a brief to the PSAC Grievance and Adjudication Section with a request that the PSAC review the file with a view to referring the grievance to adjudication. The PSAC Grievance and Adjudication Section will examine the grievance file and advise the UTE National Office if the PSAC supports the referral.
Should the PSAC recommend that the grievance be referred to adjudication, the Grievance and Adjudication Section will forward the necessary forms to the Registrar of the FPSLREB in duplicate not later than the 40th day after the date on which the grievor received a reply at the final level of the grievance procedure or from the last day on which the employer was required to reply at the final level. In referring the forms to the FPSLREB, the Alliance must also include two copies of the grievance form exactly as it was presented. Prior to the hearing, the Alliance Grievance and Adjudication Officer will meet with the grievor and any witnesses to review and prepare the case.
The Union of Taxation Employees acts as intermediary between the grievor and the PSAC and forwards to the grievor all correspondence from the PSAC concerning the case. Likewise, all correspondence from the grievor must be forwarded to the UTE National Office who redirects it to the PSAC.