Common Misconceptions About the Grievance and Arbitration Process

QUFA staff are contacted on a daily basis by members seeking advice about workplace disputes and how to resolve them. Often those conversations start with an indication from the member that they either want to resolve the matter by filing a grievance, or in the alternative, that they want to avoid arbitration at all costs as they are fearful of retribution and added conflict.

Over the course of my term as the QUFA Grievance Officer, I have addressed many misconceptions about what disputes can be grieved, the purpose of the grievance and arbitration process, the member’s rights and the role QUFA plays in the decision making process. I thought it would be helpful to respond to these questions by providing a quick review of the negotiated grievance and arbitration procedure found at Article 19 of the Collective Agreement and the QUFA policies on carriage and referring grievances to arbitration.

Not all Disputes Can be Grieved

Article 19 defines a grievance as being “any dispute or difference, arising out of the application, interpretation, administration or alleged violation of the provisions of this Agreement”.
QUFA staff are trained to help to identify issues that can be resolved through the grievance process and those that cannot, and we play an important role in helping members to understand the process.

For example, the University has the right to enforce its policies and communicate concerns and expectations about performance. Members are expected to respond to such direction and can be disciplined for failing to comply under Article 20. The right to grieve such discipline may be limited to the question of whether the discipline was reasonable and proportionate as required by the Collective Agreement. For clarity, QUFA cannot and does not grieve every instance of discipline; there has to be a breach of process, fairness or reasonable-ness for grievance to be an appropriate response.

Similarly, investigating allegations of harassment is a legal obligation imposed on the University by the Occupational Health and Safety Act and the Ontario Human Rights Code, and such action does not in itself constitute a breach of the C.A. Should discipline be imposed as a result of the investigation, QUFA must consider the reasonableness and fairness of the investigation process and whether the University’s response was proportionate and progressive as required by the C.A. and the law. If the process and the response comply the legal requirements, there may be no breach of the C.A. to support a grievance.

More commonly, concerns arise over less formal kinds of conflict and QUFA staff work with members to see if the conflict can be resolved in a timely and informal basis. Disputes often arise as a result of poor communication or a legitimate misunderstanding of the rights and obligations of the parties involved and can be easily and cooperatively resolved.

The Purpose of the Grievance and Arbitration Process is to Resolve Disputes
If the initial assessment of the dispute identified a breach of the C.A., and the matter was not resolved through the informal resolution process, the Member may request that QFUA initiate the grievance procedure in Article 19. The stated purpose of the process is “to use every reasonable effort to resolve grievances informally, amicably and promptly.” In light of this goal, the steps in the process must be followed sequentially and within set timelines as consideration of the dispute moves to progressively higher levels of decision makers by both QUFA and the University. The ultimate goal is to resolve the matter without arbitration, and negotiations to resolve the matter can continue up to an including the start of the arbitration process and any time afterward with the assistance of legal counsel and the Arbitrator.

QUFA Has Carriage of the Grievance
The QUFA protocol regarding representation requires that a Member who wishes QUFA to proceed with a grievance give QUFA control of the process, “allowing the union to decide strategy, mode, substance of representation and advocacy, and how far to take the matter. This form of control is called carriage.” (insert link to protocol) This Protocol is consistent with Article 19, that states that carriage of a dispute can be assumed by QUFA at any point in the process, but that only QUFA, and not the member, can move the matter to Step 2, arbitration. As a result, though a Member’s input will always be sought, there is no free-standing right for a member to process a grievance to arbitration and similarly, QUFA can decide to pursue a grievance to arbitration without the Member’s permission.

There are Multiple Levels of Assessment of the Merits of the Grievance
In addition to the steps outlined in Article 19, if the dispute is not resolved at Step 1 and the member wishes to proceed with the Grievance, QUFA’s Protocol on representation requires consideration of the merits of the case at several levels.

QUFA Grievance Officer
First, the QUFA Grievance Officer will present the facts, legal issues and the impact of the alleged breach on both the member and the bargaining unit to the QUFA Grievance Committee and make a recommendation to the Committee on how to proceed.

QUFA Grievance Committee
Following discussion, the Committee will indicate their support for a grievance, or they can recommend closing the file without further action. If the Committee feels that the matter raises a general issue of the University’s interpretation, application or administration of the C.A., they may also recommend forwarding the matter as a policy grievance, rather than or in addition to the individual complaint without regard to the member’s wishes. The recommendation is forwarded to the full QUFA Executive for consideration.

QUFA Executive
The QUFA Executive reviews the facts of the grievance and the recommendations of the Grievance Committee on a de nova basis; meaning that the facts are considered as if the issue was being heard for the first time. The Executive is not bound by the recommendations of the Grievance Committee.

The statutory Duty of Fair Representation requires that the Executive consider a number of factors in coming to a decision, including the merits of the case, the outstanding labour relations issues between the parties raised by the grievance, what if any remedies would be available, the financial and labour relations costs raised by the grievance, and the personal costs to the individual and other members of the bargaining unit.

These factors are applied in the context of the hierarchy of issues that are given priority for serious consideration listed in the attached QUFA Policy for Forwarding a Matter to Step 2. Insert link to policy. In sequence, those categories are (1) Job threatening decisions, (2), serious violations of non-discrimination provisions, (3) major violations of academic freedom, (4) policy interpretations of the CA that significantly threaten the integrity of the Collective Agreement, and (5), excessively punitive action against Member(s), (2-5 of equal weight), (6) abuse of management rights, and 7, any other University action that in the circumstances is deemed to require QUFA assistance.

Priority does not Guarantee a Grievance
Priority does not create a “right” to a grievance or arbitration process. For example, if a member is dismissed as a result of an allegation of serious sexual misconduct following a fair and thorough investigation, QUFA would have to balance the impact of that job threatening action with what may be a legal and moral obligation to consider the impact of that member’s continued presence on campus on the health and safety of other members.

The Right to Appeal
If a member does not agree with the decision of the Grievance Committee or Executive, they have an automatic right to appeal. Insert link here Following appeal, if the Member is still dissatisfied with QUFA’s decisions, they have the right to file a complaint with the Labour Board that QUFA failed in its duty of fair representations. Link to OLRB here

Summary
Contacting QUFA Staff early in a dispute is the most important action you can take. This will ensure that the issue is forwarded to the appropriate dispute resolution process and that the University is given early notice of disputes that could be adversely impacting the health and safety of other QUFA members.
It will also ensure that members who are experiencing workplace disputes have a clear understanding of the objectives and possible outcomes of the choices they have to assist them in obtaining a resolution to the dispute. Negotiated settlements are the basis for good labour relations, and good labour relations contribute to a better workplace for all.

For More Information

For more information, see the Grievances page of the QUFA Web site and the “Duty of Fair Representation” bulletin on the Ontario Labour Relations Board’s Web site: click here.

Peggy Smith
QUFA Grievance Officer
smithpe@queensu.ca