Because a collective agreement is composed of language that is designed to cover a broad range of situations, it can be subject to interpretation as new issues are brought forward, and language is applied. The grievance process is the avenue for resolving questions of meaning and application of language.
Common sources of grievances in the workplace include:
- Discipline and discharge
- Hours of work and Overtime
- Job Postings
- Safety and Health, etc.
- Persistent underpayment or non-payment of regular benefits
- Severance and Redundancy Pay
Discipline and Discharge
All collective agreements (to which this write-up pertains) outline management functions and confirm the right of the employer to manage and direct workers and to determine the standards of work. When those standards are not met, management has the right to address the issues within the guidelines of the collective agreement. Disciplinary action may result, such as warnings or suspension when performance or behavioural standards are not being met. Discipline is viewed as a serious action imposed on a worker and, given the severity of disciplinary action and the “just cause” standard which it must meet, unions are prone to initiate grievances on these actions. The grievances initiated tend to challenge either the discipline itself i.e. there was inadequate warning that discipline would result, or they challenge the severity of the discipline imposed.
Where performance or behavioural issues exist, the worker needs to be made aware of the performance standards to be met. In this situation, the following procedure must be adhered to:
o Identified areas of concern are brought to the worker’s attention
o Problems are described, expectations outlined
o Tools are offered to the employee in support of improving performance and meeting expectations
o A reasonable time frame in which to improve is established.
Another common source of grievances is Hours of Work and Overtime.
One example of this may be a busy environment where workers work under pressure to meet prescribed deadlines. The expectation is that those deadlines will be met. However, that is not always possible within the standard 40-hour work week. Therefore, a worker may decide to work some extra hours during the week to meet his deadline and then expects to be compensated for the overtime hours. He argues that even though he did not obtain approval up front, the expectation was there for him to meet the deadline. However, the collective agreement states that all overtime must be approved in advance of the hours being worked; therefore, the section refuses to reimburse him for the extra hours. It may very well result in a grievance in which case the language of the contract will be reviewed and will be the deciding factor.
It is imperative that workers are made aware of the collective agreement stipulations so that they fully understand what is expected of them.
If prior approval of overtime worked is a requirement, staff should be informed of that process within their unit/department as stated in section 106 of Act 651.
In some collective agreements, seniority is a determining factor in who works overtime hours at peak periods. In such instances, if the most senior workers are not selected, the reason may have to be indicated, and justification may have to be provided. It could be that a most senior worker did not have the skills to perform the work at hand. Once again, the language of the contract will have to be consulted.
Collective agreements usually define the process for filling vacancies quite clearly. There is always room for interpretation in the wording of the contract. Language such as “skill, ability and qualifications to satisfactorily perform the requirements of the vacant position shall be the determining factor” is sometimes challenged. Candidates may feel they are the best fit for a job posting without being aware of the pool of applicants against whom they are competing, and they challenge the decision.
In such an instance, the bona fide requirements of the position are reviewed, along with the skills, abilities and qualifications of the applicant. The interview tool and testing material (if any) are also examined with a view to understanding how the selection of the best candidate for the position was determined. In situations where an applicant from outside the organisation becomes the successful candidate, it is not unusual to encounter a grievance from an individual who is considered an “internal” applicant. In those instances, the information listed above is reviewed, and the onus is on the hiring unit, with the assistance of Human Resources, to justify the decision.
Seniority may also be a determining factor in the recruitment process. If the most senior applicant is unsuccessful in a competition, they may be aggrieved by the decision. The onus is on the Union to present why the more senior employee should have been the successful candidate. The hiring Manager, with the assistance of Human Resources Manager, would provide the rationale with supporting documentation for the decision. It may be that the most senior applicant lacked a fundamental requirement for the position. Nevertheless, the case must be made to support the decision, so thorough documentation of the recruitment process is essential.
Although seniority is not usually the direct cause of grievances, it is a significant factor in many cases. Unions often strive to create an environment where such things as promotions or the allotment of overtime are determined by the length of time that the worker has worked for the employer. The philosophy behind this principle is the avoidance of differential treatment. In such collective agreements where this is achieved in its entirety, seniority is the backbone of the collective agreement.
Seniority related grievances can also arise in a layoff situation. In a unionised environment, it is typical that those workers with the least number of years are laid off first and are displaced by more senior workers who have the ability to do the work. Grievances often result around the concept of whether the person displacing has the skills, abilities and qualifications to perform efficiently in the new role.
The onus is then on the union to prove that the person displacing could do the work.
It should be noted, however, that the employer has ultimate right to employ, promote, terminate or retain within the law and best practice.
Persistent underpayment of regular benefits
This refers to payments like acting allowance, night shift allowance, transfer grant, etc. In certain cases, the approving authority may have reasons to deny a claimant and could become a source of a grievance, especially when the union recognises its persistence.
The onus will be on the approving authority to explain or convince impartial third parties to rule in their favour or otherwise.
Severance and Redundancy
Severance and redundancy have always been considered a premature retirement, especially if the numbers were high. Unions had never taken redundancy lightly because it reduces their membership and also worsen their financial situation.
Because of fears and suspicion of favouritism, the rigidity of the union cannot be over emphasised. It is usually expected that careful negotiations are conducted, and a non-consensus agreement could lead to the grievance to be lodged with the National Labour Commission in the case of Ghana.