Every collective agreement contains grievance machinery. These are procedures identified in a collective agreement to resolve problems that develop in interpretation and or application of the contract.
Grievance is however defined as a complaint handled formally through contractually fixed procedures. If unsettled, it may lead to the arbitration, or a court of competent jurisdiction for a settlement.
Whereas the law uses the term “industrial dispute” for purposes of clarity, the term should be used interchangeably with the term “grievance” as widely employed in the collective agreement.
If a grievance is not settled in line with the grievance procedure, it may be referred within specific timelines as defined by the collective agreement to Arbitration. However, the Labour Act, 2003 Act 651, (section 153) requires that a problem can only be referred to arbitration if it still remains unresolved “after exhausting any grievance procedure established by [the Collective Agreement]”.
This is not of much benefit to both the employer and the union, as arbitration can be very costly, time-consuming, and may delay the day to-day activities of the department or section and all those involved. However, if the grievance procedure has been followed and resolution has not been achieved, then a single Arbitrator or an Arbitration Panel shall hear and determine the dispute referred to it, and his/her/its decision shall be final and binding upon all parties unless challenged in the Court of Appeal on questions of law within seven days after the publication of the award.
There are different types of grievances and they differ in their intent as well as in their processes.
An individual grievance is a complaint brought forward by a single worker in which a decision made affects that specific worker. For example, a worker who has applied for a vacancy within an organization, may be aggrieved because he was unsuccessful at securing that position. He may feel that he is the most qualified and therefore should be appointed, as per the collective agreement. A grievance can be filed to contest the decision of the hiring department. The onus will be on the hiring department, with the assistance of Human Resources, to present the facts supporting decisions made in the hiring process.
A group grievance is a complaint brought forward which concerns more than one employee. In this case, the facts surrounding the alleged violation are the same in all cases.
A group grievance involves the “effect of management action on two or more employees” under the same collective agreement. Any settlement of a group grievance would apply to all employees identified with the grievance.
A Policy grievance is a dispute involving a question of general application or interpretation of any article of the collective agreement rather than the direct management action involving a particular employee. For example, the process by which a position is posted may be viewed by the union as a violation of the collective agreement and therefore they wish to challenge it. These types of grievances are initiated at the final step of the grievance procedure and arise directly between the employer and the union.
Each participant in a grievance process has a defined role as well as specific obligations, responsibilities and privileges. They are as follows:
A worker may use the grievance procedure without prejudice to his/her employment should he/she feel there has been a violation of the specific terms of the collective agreement. However, prior to launching an individual or group grievance, the supervisor outside the bargaining unit must be provided an opportunity to be made aware of the issue and have an opportunity to resolve it. If the issue remains unresolved, the employee may bring the issue to the union to assess and to decide whether or not to pursue a grievance. Once initiated as a formal grievance, the issue will be addressed following the steps outlined in the grievance article of the collective agreement, which will be detailed later in this guide.
The Supervisor/Manager has a right to exercise his/her management rights subject to the provisions of the collective agreement. If an employee brings forward an alleged violation of the collective agreement, the supervisor/manager must meet with that employee to discuss the issue within the time frame specified in the collective agreement. The supervisor/manager has a responsibility to fully investigate the issue and respond back to the employee on the findings and a decision. The supervisor/manager is responsible for keeping and presenting accurate and up-to-date records of circumstances relating to the grievance and the employee’s work history and performance record. This will become particularly important if the issue is advanced to later stages of the grievance process or arbitration. With increasingly greater lapse in time before resolution, it is important that statements can be substantiated through factual information and documents.
It is the Supervisor/Manager’s responsibility to ensure that there is clear and ongoing communication within their unit, thus minimizing confusion and creating a culture of openness. Informed workers who understand the organization’s direction are better able to cope with change and decisions that affect them. Insufficient information can lead to stress, frustration and dissatisfaction among workers, and in the absence of well-structured information, the ‘grape vine’ or ‘rumor mill’ will generate misinformation. By creating a culture of openness, issues are likely to be resolved before a formal grievance is filed.
The union representative(s) plays a dual role within an organization. They are also workers with role responsibilities that must be completed and subject to supervision and policies/procedures as any other worker.
Secondly, the union representative has privileges, duties, and responsibilities as a representative of the union. They serve as advisors to workers about the collective agreement and will support and represent them when there is a dispute related to the collective agreement. To accomplish this second role, union representatives are allowed time, with permission, to tend to problems that may arise with members, and to represent them during the grievance process.
In a discussion with the complainant, the shop steward (or Union Representative) will advise the worker as to the merits of his or her grievance, the basis of the complaint within the bounds of the collective agreement, and the shop steward’s (or Union Representative’s) opinion on the chances of a successful outcome. Thus, acting as a sort of filter, the union representative will undoubtedly counsel the worker that his/ her complaint is or is not well founded and a violation of the collective agreement based on the information provided by the worker.