Adopted: March 2001 Revised: June 2020
OBJECTIVE
The following Guidelines are provided to assist all concerned members on the role of the Union representative when a workplace harassment/violence grievance/complaint is filed by a member against another member. For an understanding of the roles and responsibilities of the Union, it is very important to provide a copy of these Guidelines to all members seeking help from a Union representative.
These Guidelines are built upon the principles of fair and due process, and confidentiality.
Because of the sensitive nature of these situations, all avenues of assistance should be open to the members involved.
CONSIDERATION
It is important to understand that the Union cannot argue both sides of the workplace harassment/violence equation. If a set of allegations could constitute workplace harassment/violence, then the Employer has a responsibility to deal with it effectively. The Union’s ability to hold the Employer to that important responsibility is most effective where we provide representation to a Complainant. We cannot, on the one hand, say that the allegations constitute workplace harassment/violence, while on the other hand, we say they do not. At the end of the day, the grievance/complaint process is a fact-gathering exercise to determine if the allegations are supported.
EMPLOYER’S RESPONSIBILITIES
The Employer has not only a legal obligation to ensure that the work environment is free from discrimination, but also a moral and contractual obligation to create and maintain a work environment that is free from all forms of harassment/violence. Accordingly, when a member asks the Union for its assistance in dealing with a workplace harassment/violence complaint or grievance, the documents used in regards to rights and responsibilities are the CRA’s Directive on Discrimination and Harassment Free Workplace and Procedures in Response to Workplace Violence, and the collective agreement.
It is therefore recommended that all members involved (Complainant, Respondent, Witnesses and Union representative) in dealing with a workplace harassment/violence grievance/complaint review the CRA’s Directive and Procedures along with the pertinent articles of the collective agreement. (See Step 1 below for hyperlinks.)
For greater certainty, however, UTE does not support the use of the employer’s complaint procedure, but instead suggests that members utilize the grievance procedure and the Workplace Vioence Complaint procedure outlined in Part XX of the Canada Labour Code Regulations.
UNION’S RESPONSIBILITIES
Assist (assistance):
To provide information and documents related to the workplace harassment/violence grievance/complaint; to explain the process(es) and the rights and the responsibilities of the parties (Employer, Complainant, Respondent and Witness); to ensure that the Employer is acting in accordance with the collective agreement, CRA Directive and Procedures. This may include being present during meetings or interviews with the Employer’s representative and/or investigator to ensure procedural fairness.
Represent (representation):
To assist (see definition above); and also to provide guidance on the preparation of the grievance/complaint; to represent the member in the grievance process or other informal process(es).
Union’s Responsibility toward Respondent being disciplined:
Where a complaint is upheld by the Employer and results in a disciplinary measure, at the Respondent’s request, the Union will review the disciplinary penalty and, where it is determined the penalty is unjust, will provide the Respondent with representation on a subsequent grievance. Representation will be limited to the severity of the penalty. Note: The representation at one level of the grievance procedure does not guarantee representation at further levels, including adjudication.
Following are the different situations where a Union representative may be asked to intervene:
|
|
COMPLAINANT |
RESPONDENT |
WITNESS(ES) |
|
ASSIST |
In the filing of a grievance/Employer’s complaint process. |
During the Employer’s complaint process. |
During the Employer’s complaint process. |
|
REPRESENT |
During the grievance/ Employer’s complaint process. |
Following the Employer’s decision. |
|
WHEN THE COMPLAINANT AND THE RESPONDENT REQUEST UNION ASSISTANCE, FOLLOWING ARE THE RECOMMENDED STEPS:
STEP 1
Since it is the Employer’s obligation to provide a workplace free of harassment/violence, the Union representative’s role is to ensure that the Employer complies with its responsibilities as described in CRA’s Directive on Discrimination and Harassment Free Workplace and Procedures in Response to Workplace Violence, and the collective agreement. If required, provide/use the following documents that are available on the UTE web site :
-
CRA – Preventing and Resolving Harassment Policy and Guidelines;
- Related articles of the collective agreement: Article 18 – Grievance Procedure, Article 19 – No Discrimination, Article 20 – Sexual Harassment
STEP 2
Assess the situation/case
The Union representative must record the details of the grievance/complaint and obtain any information and documents related to this situation in order to conduct an assessment. This assessment would include meeting and talking individually to the member(s) involved, asking for written testimony, compiling of documentary evidence, etc. Where warranted, it may be prudent to speak with the Respondent as well in order to collect all of the facts. Such assessment may be parallel to and independent of any investigation carried out by the Employer. All information must be treated on a confidential basis, except to the extent that is necessary to complete the assessment and for the determination of the Union representation.
After completion of the assessment (within a reasonable period of time which normally should be within 25 days), the Union representative must record the results of the assessment, findings and any recommendations to the appropriate Union body.
STEP 3
Be available for investigation/mediation/other process(es)
The member involved in the Employer’s processes, such as an investigation, a mediation or other process(es), has the choice to be accompanied by a Union representative.
STEP 4
Make your determination of the Respondent’s Union representation
In the determination of the representation, the Union should base its decision by using its own assessment (see Step 2), the Employer’s documentation such as the investigation report, the documentary evidence, and any other document.
Disciplinary measure/Penalty
Where a complaint is upheld by the Employer and discipline is rendered, at the Respondent’s request, the appropriate Union body will review the disciplinary penalty and where it is deemed that the penalty is unjust, will provide this member with representation on subsequent grievances.
If the Union decides to provide representation to the Respondent, the Union representative must advise the member (by providing a copy of these Guidelines) that the representation at one level of the grievance procedure does not guarantee representation at further levels, including adjudication.
If at any levels the penalty is deemed to be just, the Union will not provide representation to the Respondent.
RESTRICTION
Situations where these Guidelines do not apply
The Guidelines do not apply to situations wherein members are exercising their rights and duties as Union members or officials, such as in relation to Union discipline or the PSAC Picket Line Policy.
QUESTIONS AND ANSWERS RELATED TO WORKPLACE HARASSMENT/VIOLENCE FOR UNION REPRESENTATIVES AND MEMBERS
Annex A Union Representatives
Annex B Members
ANNEX A
QUESTIONS AND ANSWERS RELATED TO WORKPLACE HARASSMENT/VIOLENCE FOR UNION REPRESENTATIVES
1. To provide representation, I need to decide whether there was workplace harassment/violence. How do I do that?
Representation should be provided unless you consider that no workplace harassment/violence has occurred. This is the same question that the Human Rights Commission asks when they are deciding whether to investigate a complaint as well.
You are not required to conduct a full investigation into the complaint – that is the Employer’s job. Read the allegations, look at the definition of workplace harassment/violence, and talk to the grievor/complainant. It may be prudent to speak with the Respondent as well to gather or clarify information. If you conclude that these allegations could constitute workplace harassment/violence, the Union can represent and, in so doing, make sure that the Employer fully and fairly investigates the allegations.
If you conclude that the allegations would not meet the definition of workplace harassment/violence, you should communicate your reasons to the grievor/complainant, preferably in writing. For example, if someone alleges that a manager is monitoring his/her work performance, and there is no reasonable information that would suggest that it constitutes discrimination or workplace harassment/violence, you need not provide representation.
2. As a Union representative, which form(s) am I responsible to complete on behalf of the Complainant?
Only the grievance form.
3. What do I do if allegations of workplace harassment/violence are made against one or more UTE member(s)?
The Employer is responsible for maintaining a harassment/violence-free workplace and is responsible for investigating a complaint. The person(s) alleged to have engaged in workplace harassment/violence (Respondent(s)) will be advised by the Employer as a result of the filing of a grievance or complaint.
A Respondent may seek assistance and advice from the Union with respect to the process in place for addressing allegations of workplace harassment/violence.
For example, the Union will provide the Respondent with information outlining the grievance or complaint process and Employer contact information. It will remain available to answer questions related to the process and may step in to make general representations where a fair and thorough process is not being followed by the Employer.
If the Respondent receives discipline as a result of the grievance/complaint, then he or she can approach the Union with a request for representation. The Union will consider whether any resulting discipline was warranted or was excessive, or whether any other resulting corrective measures were reasonable in deciding whether it will provide representation.
4. What do I do if there are cross-complaints?
This happens when person A files a workplace harassment/violence complaint against person B, and person B files a workplace harassment/violence complaint against person A.
Where a series of cross-complaints are filed, it becomes difficult for the Union to take a representational role, particularly where the allegations could, on their face, meet the definition of workplace harassment/violence. These situations are extremely complex and divisive. It makes the most sense for the Union to play a role that ensures that the Employer deals with the allegations in a timely and fair manner. The Union’s role, therefore, is to monitor the process rather than to adopt the role of full representative for one side or the other.
When the process is concluded and the result is disciplinary action or other corrective measures, a member can approach the Union for representation. The Union needs to decide whether the employer’s measures are excessive before deciding to represent the member.
5. If I need guidance, where can I go?
To your Local President and/or Regional Vice-President. The UTE National Office is available to provide advice and direction to your Regional Vice-President, upon request from him/her.
ANNEX B
QUESTIONS AND ANSWERS RELATED TO WORKPLACE HARASSMENT/VIOLENCE FOR MEMBERS
1. What do I do if I feel I am the victim of workplace harassment/violence?
Any UTE member who believes he or she is experiencing harassment/violence in the workplace can approach his or her Local Union Representative for information and/or assistance.
A grievance/complaint may be filed by a member experiencing workplace harassment/violence.
2. I have been named the Respondent in a workplace harassment/violence complaint. What do I do?
Approach your Local to ask questions if you are unsure about what to expect.
Co-operate with the investigation and provide as much relevant information as you can. If you receive a disciplinary measure as a result of a finding of workplace harassment/violence, then you can approach your Local for appropriate representation. The Union can provide you with representation if it believes that the disciplinary measure is excessive or unreasonable in the circumstances.
3. Why do I not receive full representation as the Respondent?
The Union cannot argue both sides of the workplace harassment/violence equation. If a set of allegations could constitute workplace harassment/violence, then the Employer has a responsibility to deal with it effectively. The Union’s ability to hold the Employer to that important responsibility is most effective where we provide representation to a Complainant. We cannot, on the one hand, say that the allegations constitute workplace harassment/violence, while on the other hand, say they do not. At the end of the day, the grievance/complaint process is a fact-gathering exercise to determine if the allegations are supported. Because of this, we can still support you by giving you information about the process and by monitoring the Employer while it investigates the allegations.