Guidelines to Committees Reviewing and Hearing Grievances

5th Edition
April 2019

April 2019

Guidelines to Committees Reviewing and Hearing Grievances was first published by the National Joint Council in 2002. Its purpose then and now is to help committee members as well as those who present cases before committees to understand the NJC grievance process and the procedures used in conducting NJC final level grievance hearings.

The NJC grievance process is a very successful example of alternate dispute resolution which has been in place for many years. At the final level, the process has two distinctive and innovative features:

The criterion for reviewing grievances is the intent of the directive. Final level hearings are fact-finding inquiries designed to discover whether an employee has been treated within the intent of the NJC directive. This contrasts with formal adjudication under the Public Service Labour Relations Act where the test more often is the meaning of the words in a collective agreement.

Who better to determine intent than the parties who were responsible for the directive in the first place? At a final level NJC hearing, committee members from both management and bargaining agent sides who co-developed the directive weigh whether or not the directive has been applied as they intended. While there is sometimes disagreement between the parties about intent, much more often both sides reach consensus about how an employee should have been treated. This process is very different from conventional final level hearings where only one side --- management --- hears and decides the issue.

We hope that the Guidelines to Committees Reviewing and Hearing Grievances may assist all involved to ensure the continued success of the NJC grievance process.

 

Sean Ross
General Secretary

National Joint Council

Guidelines to Committees Reviewing
and Hearing Grievances

Context

• The Executive Committee is the final level of the grievance procedure where an employee contests the interpretation or application by the employer of a directive or policy which has been agreed to by Council, and which has been approved by the appropriate executive body of the government.

paragraph 15.1.5 (c) of the NJC By-Laws

• An employee must have the approval of, and be represented by the employee's bargaining agent where the directive giving rise to the grievance has been deemed to form part of the employee's collective agreement.

subsection 15.1.4

• Where the DLO reply is not satisfactory to the employee, the DLO has not replied, or no second level hearing occurred within the prescribed timelines, the employee may, within the next 10 working days, present the grievance to the final level through the employee's immediate supervisor or local officer-in-charge. It is the responsibility of the DLO to bring the grievance to the attention of the Executive Committee through the General Secretary.

subsection 15.1.10

• Time limits specified in the NJC grievance procedure may be extended by written consent of both the bargaining agent and the employer. Time limits are exclusive of Saturdays, Sundays and designated paid holidays. A grievance may be referred directly to the final level with the written consent of both the bargaining agent and the employer.

subsections 15.1.23 and 15.1.24

• The Executive Committee may either review and decide the grievance itself (with advice from the General Secretary) or refer the grievance to the appropriate Council committee for review and a recommendation on intent with regard to the subject matter of the grievance. The Executive Committee normally exercises the option of deciding a grievance without referring it to a committee only where ample precedents exist, or where there is an issue of timeliness or jurisdiction which can be determined without a hearing.

subsection 15.1.15

• The mandate from the Executive Committee to a committee to hear a grievance, as well as the time limit within which a report is expected from the committee, are communicated by letter from the General Secretary to the committee chairperson.
• When a grievance is transmitted to the final level without a second level reply, departments will be notified by the General Secretary that the DLO has 10 working days to produce a second level reply. If the department is unable to produce a second level reply within this timeline, it may ask for a reasonable extension; otherwise the grievance will be scheduled for a hearing without a second level reply.

subsection 15.1.11 and 15.1.12

Timeliness

• Either party have the possibility to submit an objection to timeliness, however such objection must be received within thirty (30) working days from the date that the grievance was received by the General Secretary at the final level.

subsection 15.1.13

• Both requests from the NJC Secretariat will indicate that the Executive Committee may decide the timeliness issue without subsequent hearing based on the written arguments submitted by the parties, or may refer the issue along with the issue of intent to the appropriate Council committee.
• Where the issue of timeliness is referred to a Council committee, the committee will be provided with copies of the parties’ written submissions on the issue. The committee will normally provide the parties with further opportunity to present their case on the timeliness issue as a preliminary matter at the hearing.

Criterion for Review

• All interpretations and clarifications made under the NJC grievance procedure are based on the intent of the directive being interpreted. The responsibility of the chairperson of the committee reviewing a grievance is to report to the Executive Committee, via the General Secretary, on the intent of the directive or policy as applied to the fact circumstances of the case at hand.

subsection 15.1.17

• Intent is reviewed on the basis of the original directive or policy developed and adopted in Council. Where any issue arises regarding the accuracy or authenticity of text from a directive or policy, the NJC Secretariat is the repository of official versions of approved directives or policies.

subsection 15.2.1

Representations to the Committee

• The bargaining agent and the employer have the right to make representations to the Council committee considering the grievance.

subsection 15.1.16

• Representations are normally made orally, supported by a written summary. Both representatives, however, may agree to limit their presentations to written submissions. If one or both parties decline to make presentations, the committee may make its recommendation to the Executive Committee based on file information on hand.
• A member of the committee normally should not act as a representative of the grievor or management in a case. If a member nevertheless does act as a representative of the grievor or management, typically, he/she should not participate in subsequent consideration of the case by committee members, and should absent himself/herself from these discussions.
• Normally, the grievor does not attend the committee meeting. The grievor nevertheless may attend, in which case his/her bargaining agent representative should notify the committee secretary in advance who in turn will advise the committee chairperson, members and the employer. (NJC bears no responsibility for any expenses arising from the grievor’s attendance.)
• Presentations are normally made only by the official representative of each party, and questions are normally posed by committee members only to these representatives. Occasionally, an official representative may require assistance to provide technical information, but not to argue the case. In these circumstances, the representative should notify the committee secretary in advance who in turn will advise the committee chairperson, members and the official representative of the other party.
• Oral and written presentations are normally made in the official language in which the grievance is officially presented by the grievor. Where necessary and with sufficient advance notice, simultaneous interpretation will be provided.
• Representatives are notified by letter confirming the hearing that they are expected to provide ten (10) copies of the written summary of their presentations and of any supporting documents and/or case precedents to the committee at the hearing. It is not the responsibility of the committee or the Secretariat to prepare copies.

Conduct of the Review/Hearing

• The committee’s review of the grievance is an advisory process (to the Executive Committee), not a formal decision-making hearing. Strict rules of procedure and of evidence do not apply, witnesses are not called and exhibits are not formally admitted. The process should be flexible with the aim of securing and discussing the information needed to provide a recommendation on intent. The committee nevertheless has a fundamental obligation to give each of the representatives a full and fair opportunity to present their respective cases. Note that due caution must be exercised where evidence is presented without clear foundation (e.g., as in the case of hearsay).
• The chairperson of the committee determines procedure for the review and decides all procedural issues which arise. As a general guideline, the following process is recommended:
  1. The chairperson introduces all attendees, outlines the purpose of the meeting and the procedure to be followed, and determines any preliminary issues.
  2. The representative of the grievor distributes his/her written case summary and makes an oral presentation. Committee members pose questions of clarification.
  3. The representative of the employer distributes his/her written case summary and makes an oral presentation. Committee members pose questions of clarification.
  4. The representative of the employer is offered an opportunity to comment on the grievor’s case.
  5. The representative of the grievor is offered an opportunity to comment on the employer’s case.
  6. Committee members pose final questions of clarification.
     
     
• Following conclusion of the presentations, the representatives (and the grievor if present) leave the meeting so that committee members may deliberate. It is recommended that they be asked to remain available for a short period (e.g., 20 minutes) in the event that the committee identifies a requirement to pose additional questions. In exceptional cases, the committee may request further information from the representatives in writing or request that they reappear before the committee. Where further information is requested in writing, both representatives must be given the opportunity to comment on the information provided, either in writing or in person, as determined by the committee chairperson.
• It is not appropriate during deliberations for committee members to introduce additional evidence or information specifically related to the grievance beyond what has been presented by the representatives. If committee members feel that other pertinent information is/or should be made available, a request for this information should be addressed to the representative of the employer and/or the grievor as appropriate.
• During the deliberation phase, the employer or bargaining agent sides may caucus to discuss the grievance with the approval of the committee chairperson.
• Where possible, the chairperson should advise the representatives of the parties at the conclusion of proceedings when he/she expects the committee’s recommendation to be considered by the Executive Committee.

Role of the Chairperson

• As a neutral facilitator, to determine and explain procedures, to ensure that the representatives of the parties are accorded a full and fair opportunity to make their respective cases, to identify additional information requirements (if any) in advance or at the hearing, and to assist where possible in the development of a consensus recommendation on intent.
• To ensure that the results of the committee’s review of the grievance are reported accurately and fairly to the Executive Committee through the General Secretary.

Role of Committee Secretary (Committee Advisor)

• Committee secretaries are responsible for the preparation and delivery to the General Secretary of committee minutes and reports within the time limits established by the Executive Committee.

subsection 6.3.1

• The Committee secretary co-ordinates and schedules grievance hearings, maintains and ensures the completeness of case files, and provides advice to representatives, the committee chairperson and committee members on procedure.

Role of Committee Members

• To hear and evaluate the arguments of the representatives, to pose questions of clarification as required, to review all documentation and to make a good faith effort to develop a consensus recommendation on intent (i.e., that the grievor was or was not treated within the intent of the directive, in whole or in part).

Role of Representatives

• To co-operate in the scheduling of grievance hearings, and to ensure that copies of written case summaries, supporting documents and/or case precedents are available at the hearing.
• To present their case in a clear and concise fashion, and to answer questions of clarification posed by committee members.

Mediation/Voluntary Resolution

• A committee is not normally expected to attempt to mediate a dispute. Nevertheless, where the chairperson believes that a voluntary resolution of the case may be possible, he/she may provide assistance to the representatives to this end. Alternately, the chairperson may contact the General Secretary who will liaise with the parties to provide assistance with the objective of achieving voluntary resolution of the grievance. Should such efforts fail, the case will be referred back to the committee for its recommendation.

Recommendation and Report

• The report of the committee normally advises either that the employee has been treated within the intent of the directive or policy, or that the employee has not been treated within the intent of the directive or policy, and summarizes the reasons for the recommendation. Where a recommendation supports the grievor in whole or in part, the report also advises on the appropriate remedy within the scope of the remedy sought by the grievor.
• Three essential elements appear in the “Recommendation” section of the committee’s report:
  1. A statement of the conclusion reached by the committee (i.e., that the grievor was or was not treated within the intent of the directive, in whole or in part);
  2. The reasons why the committee reached this conclusion, including specific identification of the relevant provisions of the directive on which the conclusion was based, and the committee’s determination with respect to the intent of these provisions; and
  3. A clear statement of the recommended corrective action, if any, including an effective date as appropriate. (Should corrective action already have been taken, this corrective action should be identified and the committee should recommend whether or not this action be considered sufficient.)

• The principal objective of the committee’s review is to reach a consensus recommendation on intent. (A consensus exists when all members of the committee are prepared to support a recommendation.) Where it becomes apparent to the chairperson of the committee that there are conflicting perspectives and that no consensus can be reached, he/she advises the Executive Committee through the General Secretary that the committee has reached an impasse on the grievance. In such cases, the report of the chairperson should summarize the different views of committee members on the case for the information of the Executive Committee.
• In some cases, there may be strong majority support for a determination (i.e., a clear majority including members from both the employer and bargaining agent sides), but not full consensus. In this event, the chairperson may report the majority view of the committee but should also indicate the minority perspective. Note that a “majority-minority” report should be an exceptional event.
• Formal votes are neither taken nor recorded.

Subsequent Steps

• Based on the recommendation received from the committee on intent, the Executive Committee reviews and decides on the grievance. In exceptional cases, the Executive Committee may refer the grievance back to the working committee for further consideration before deciding the issue.

subsection 15.1.18

• The General Secretary then advises the Departmental Liaison Officer (DLO) of the Executive Committee's decision in regard to the grievance. The DLO is responsible to communicate the decision of the Executive Committee as the final level reply to the grievor, with a copy to the grievor’s bargaining agent. (As a matter of conventional courtesy, the General Secretary’s letter to the DLO is copied to the grievor’s bargaining agent representative.)

subsections  15.1.19 and 15.1.20

• The Chairperson of the Executive Committee is required to report on the grievance decision to full Council at its next regular meeting. (In practice, this is done as part of the Chairperson’s general report.)

subsection 15.1.21

• The employee may, with the approval of the employee's bargaining agent, refer the grievance to adjudication in accordance with the provisions of the Federal Public Sector Labour Relations Act (FPSLRA) if the grievance relates to a directive or policy which has been deemed to be part of the grievor's collective agreement.

subsection 15.1.22

Confidentiality

• For reasons of confidentiality, the name of the grievor and other specific identifying information (e.g., location, department) are not reported in committee minutes or any record of decision, draft or final. Committee members are not permitted to discuss the results of the hearing until the Executive Committee has made a final determination and its decision has been formally communicated. Committee members may not disclose any personal information disclosed while considering a grievance, and must take all appropriate measures to maintain the security of grievance documentation, or have it shredded.

 

This document is available in both official languages on the NJC website: 
www.njc-cnm.gc.ca.

Summaries of many grievance decisions are available on the National Joint Council Web site, located at www.njc-cnm.gc.ca.

You may search our database of archived decisions or browse recent decisions. Only summaries of the grievances are presented and the names of the parties involved are not disclosed.