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National Joint Council Grievance Referral Guide for Labour Relations Practitioners

This guide is intended to provide labour relations practitioners with a brief overview of the final level of the National Joint Council (NJC) grievance process. For information on NJC grievances or the NJC grievance process in its entirety, please consult the following portion of the NJC website:

http://www.njc-cnm.gc.ca/s2/en

NJC Grievance Levels

Grievance presentation and transmittal forms vary from one department to another. In some cases, the forms used for NJC grievances are the same as those used in the traditional departmental grievance process. Please ensure that NJC grievances are clearly identified as such on all forms throughout the NJC grievance process.

First level - the representative of the employer authorized to deal with grievances at the first level

Second level - the Departmental Liaison Officer (DLO) or Agency Liaison Officer (ALO), who is appointed by the deputy head

Final level – the National Joint Council Executive Committee

Note: Grievances should only be referred to the final level once replies have been issued at both the first and second levels.

Preparing the Grievance for Transmittal to the Final Level

When the second level of the grievance process has been completed and the grievor has requested transmittal to the final level, the responsibility for ensuring timely transmission lies with the DLO or ALO, as applicable. The DLO/ALO will provide a comprehensive file to the General Secretary of the NJC with all documents and background information relevant to the grievance.

The following documents must be transmitted to the final level:

In addition to the documents listed above, supplementary information may also be required. Examples include, but are not limited to:

Furthermore, any objections to jurisdiction and/or timeliness must be raised at the outset of referral to the final level. In situations where the question of timeliness arises, it must be raised at all levels. All supporting documentation pertaining to jurisdiction and/or timeliness should accompany the grievance file.

Note: It is crucial that the General Secretary be able to form a comprehensive understanding of the facts of the grievance with the documentation provided. All information requested is essential to the processing and analysis of the grievance file. Incomplete referrals will result in delays. 

Receipt at the NJC Secretariat

Once the grievance is received at the NJC Secretariat it is reviewed for its completeness by the NJC Committee Advisor assigned to the relevant NJC directive. In the event of missing documentation or the need for supplementary information, the Committee Advisor will contact the parties' respective representatives.

Jurisdiction/Timeliness

Objections to jurisdiction and/or timeliness should be raised at the outset of referral to the final level as the Executive Committee must first consider these before dealing with the merits of the grievance. Objections raised during the grievance hearing will not be considered.

In situations where a question of jurisdiction or timeliness is raised, the Committee Advisor will contact the appropriate party to seek its position. A timely response is necessary for the expedient processing of the grievance. Failure to respond could result in the placement of the grievance in abeyance pending a reply or a grievance decision being issued based on existing documentation.

When the file is complete the Committee Advisor will conduct an analysis for consideration by the General Secretary on behalf of the Executive Committee. Following the analysis stage the grievance will take one of three paths:

  1. The grievance is referred to the Executive Committee for a decision on preliminary issues (i.e. timeliness, jurisdiction);
  2. The grievance is referred to the Executive Committee for a decision based on NJC precedent; or
  3. The grievance is referred to the appropriate Working Committee (i.e. Government Travel Committee for grievances under the NJC Government Travel Directive) for a hearing and a recommendation on whether or not the grievor was treated within the intent of the directive.

In scenarios 1 and 2, the parties will be advised of the Executive Committee's decision at the earliest possible date.

Referral to the Working Committee

In the event that the grievance is referred to the Working Committee for a hearing and recommendation, the Committee Advisor will assemble the relevant grievance documents, from among those in the grievance file provided by the DLO, for the Committee's review. The documents forwarded to the Committee generally include the grievance presentation, all transmittal forms, all replies and any other relevant forms or documentation. The Committee Advisor will also contact the parties' respective representatives to coordinate a hearing date.

Hearings are generally scheduled in order of grievance receipt at the NJC Secretariat and in accordance with the Committee's meeting schedule. Hearings take place in the language of the file unless otherwise advised by the parties.

When a hearing date has been established, the Committee Advisor will transmit an official hearing confirmation to the parties.

Preparation for the Grievance Hearing

Presentation

The parties are asked to limit their oral presentations to 20 minutes. While there is no prescribed format for the presentation, representatives generally provide a clear and concise summary of the relevant facts; enumerate the issue(s) grieved and corrective action requested; outline their arguments; and reference applicable sections of the Directive.

Documentation

The parties may choose to submit written presentations in addition to their oral presentation. While the provision of a hard copy presentation is not mandatory it is encouraged. Parties choosing to provide such documentation should ensure that a copy is made available to the representative of the opposing party, each Committee member and the Committee Advisor. However, the documents need not be distributed until the outset of the hearing. The Committee Advisor will inform the representatives of the number of copies required via the official hearing confirmation.

As the Committee members will already have received grievance documents from the Committee Advisor, only supplementary information should be provided. Should you wish to confirm whether specific documents are included in the package provided to Committee members, please communicate with the Committee Advisor. The parties may also include relevant case history in their presentation packages.

Additional Information

Representatives should be prepared to answer questions of clarification from Working Committee members. Unlike with formal grievance arbitration, the grievor does not normally attend the hearing.

For further information on grievance hearings, please consult the Guidelines for Committees Reviewing and Hearing Grievances.

Overview of the Grievance Hearing

At the outset of the grievance hearing, the Chairperson of the Working Committee will ask all in attendance to introduce themselves. He/she will also explain the hearing process:

  1. Presentation by the bargaining agent representative;
  2. Questions of clarification by the Working Committee on the bargaining agent's presentation;
  3. Presentation by the departmental/agency representative;
  4. Questions of clarification by the Working Committee on the Department's/Agency's presentation;
  5. Departmental representative's comments (rebuttal) on the grievor's case;
  6. Bargaining agent representative's comments (rebuttal) on the Department's case;
  7. Final questions of clarification by the Working Committee.

Note: As the bargaining agent representative is first to present, the departmental/agency representative should avoid repeating identical information. In order to avoid the duplication of information, the parties may choose to submit an Agreed Statement of Facts.

Representatives are expected to conduct themselves in a professional and respectful manner at all times. Inappropriate and/or disrespectful behavior will not be tolerated.

Once the grievance hearing is complete the representatives will be escorted from the hearing room. Representatives are asked to remain available for a brief period while the Working Committee begins deliberations. The representatives will be excused once the Committee has established that there are no further questions of clarification.

Working Committee Report and Recommendation

Following the grievance hearing, the Working Committee will enter into deliberations with a view of reaching a consensus on a recommendation on whether or not the grievor was treated within the intent of the directive. The Chairperson will then submit a report to the Executive Committee summarizing the parties' presentations and the Working Committee's recommendation on whether or not the grievor was treated within the intent of the directive.

In some instances the Committee is not able to reach a consensus. When this occurs, the Chairperson's report will include a summary of the differing views within the Committee on the grievance.

Referral to the Executive Committee

Following the hearing and the development of the Chairperson's report the grievance is referred to the Executive Committee for a final decision. The Executive Committee will review the report and consider the recommendation of the Working Committee before rendering its decision.

In most cases the Executive Committee is able to reach a consensus and determine whether or not the grievor was treated within the intent of the directive. However, impasses do occasionally occur.

While the NJC Secretariat endeavours to transmit the Executive Committee's decision in a timely fashion, please note that the Executive Committee meets bimonthly. As such, the parties can expect to wait a minimum of 6 to 8 weeks from the hearing date to receive notification of the outcome.

Adjudication

A grievor who is not satisfied with the decision at the final level may, with the support of his/her bargaining agent, refer the matter to the Public Service Labour Relations and Employment Board (PSLREB) for adjudication. This is equally applicable to situations where the Executive Committee reaches an impasse. However, it must be noted that the decision reached at the PSLREB will not be based on the intent of the directive but rather the meaning and interpretation of the specific language. Furthermore, departments cannot avail themselves of this recourse.

Frequently Asked Questions

1.  What are the responsibilities of the departmental/agency representative?

It is the departmental/agency representative's responsibility to:

2.  What are the responsibilities of the bargaining agent representative?

It is the bargaining agent representative's responsibility to:

3.  What is the expected timeframe for the completion of the final level of the grievance process?

The processing time for a grievance at the final level is dependent upon a number of factors including the completeness of the grievance file at the time of referral, preliminary issues (i.e. jurisdiction), the existing NJC grievance workload, the parties' hearing availability and the Working Committee and Executive Committee's respective meeting schedules.

That said, hearings generally take place between 3 to 6 months following receipt of the grievance at the NJC Secretariat. The Executive Committee's decision will require at minimum an additional 6 to 8 weeks.

4.  Who should I contact about questions regarding the preparation of the grievance for referral to the final level?

NJC Committee Advisors can assist labour relations practitioners with questions of a general nature. Responsibility for the various directives and Working Committees is divided amongst Committee Advisors. Questions should therefore be directed to the appropriate Committee Advisor. Please consult the NJC website to determine the contact person for each directive/Working Committee: http://www.njc-cnm.gc.ca/s18/s9/en

Please note that as the NJC Secretariat is impartial, Committee Advisors cannot provide advice or guidance on grievances.

5.  What are my options if I am not able to meet a deadline assigned by the General Secretary or an NJC Committee Advisor?

Parties may request an extension of time however this must be done in writing. Requests should be transmitted to the NJC Committee Advisor as soon as possible, with a copy provided to the representative of the opposing party. Please note that failure to respond within the prescribed time limits will delay the processing of the grievance and could result in a decision being issued without further consultation.

6.  What role do Working Committee members play during a grievance hearing?

Working Committee members represent all NJC members on their side (bargaining agent or employer). Therefore a bargaining agent representative does not solely represent the interests of his/her organization. Rather, he/she represents the interests of all NJC member bargaining agents. The same applies to employer representatives.

The Chairperson has a neutral role and he/she does not participate in the development of the Working Committee's recommendation.

7.  Can observers attend the hearings?

Unlike adjudication, NJC hearings are not open to the public. As such attendance is limited to the representatives of each party. The NJC does occasionally entertain requests to allow additional attendees, however, these are limited to other labour relations practitioners and/or experts who have consulted on the grievance file. Requests of this nature must be directed to the Committee Advisor prior to the hearing date. In the event that the request is granted, all representations must be made by the representative only. At no point should observers address the Working Committee, the Committee Advisor or the representative of the other party. However, in the unlikely event that Working Committee members address a question to the observer, he/she may provide a response.

8.  Can the grievor attend the hearing?

As the grievor is represented by his/her bargaining agent during the hearing and no testimony is provided he/she does not normally attend. Any requests for the grievor to attend as an observer must be directed to the Committee Advisor prior to the hearing date. Rules regarding the attendance of observers apply equally to grievors (see Question 7). Consequently, the bargaining agent representative should be prepared to provide a presentation and answer any questions of clarification without the assistance of the grievor. It is therefore essential that the representative thoroughly consult with the grievor prior to the hearing.

9.  I am a representative based in a region. Am I required to travel to the National Capital Region (NCR) to attend the hearing?

Representatives are generally expected to attend hearings in person however for representatives based outside the NCR, alternate arrangements can be made provided that a request is made to the NJC Committee Advisor prior to the scheduled hearing date. Accommodation in the form of teleconference participation can be arranged, however, due to technical limitations, simultaneous interpretation cannot be provided to representatives participating by telephone. Furthermore, hard copies of the grievance presentation must be forwarded to the Committee Advisor before the hearing.

Please note that it is not the responsibility of the NJC Secretariat to make copies of presentation documents, nor is it the responsibility of the NJC Secretariat to reimburse the parties for travel costs incurred as a result of attending a hearing.

10.  Why are NJC grievances allowed to be referred to the PSLREB?

In accordance with the Public Service Labour Relations Act, a grievance may be referred to adjudication if it is related to the interpretation of a collective agreement. As NJC directives form part of collective agreements negotiated by Council members, grievances arising from their application may be referred to the PSLREB.

Furthermore, the NJC By-Laws stipulate that an employee may refer his/her grievance to adjudication if:

a)   He/she is not satisfied with the decision of the Executive Committee;

b)   The Executive Committee has reached an impasse; or

c)   The DLO/ALO has not conveyed the final level decision to the employee within 30 days of the date of the General Secretary's letter communicating the grievance decision.

The employee must have the approval and support of his/her bargaining agent to proceed to adjudication.

11.  Are PSLREB decisions precedent setting?

PSLREB decisions are not precedent setting with respect to the final level of the NJC grievance process. The decision of the adjudicator is based on the meaning and interpretation of the specific language of the directive whereas the purpose of the Executive Committee is to determine whether an employee has been treated within the intent of a particular directive.

12.  How can grievances be determined based on the intent of the directive?        
How are the NJC Committees able to determine what the intent of the directive is?

NJC Working Committees are equally divided between bargaining agent and employer representatives. When the parties participate in an NJC hearing they appear before the Working Committee responsible for the directive in question. It is this same Working Committee that jointly developed the directive. As such, those who wrote the directive and therefore best understand its intent are also responsible for interpreting its meaning following a grievance hearing.

13.  Whose responsibility is it to transmit the final level decision (from the Executive Committee) to the grievor once it has been issued?

As stipulated in Section 15.1.15 of the NJC By-Laws, on receipt of the decision of the Executive Committee from the General Secretary, it is the DLO's responsibility to transmit the decision, as the final level reply, to the grievor.   A copy of the decision should also be transmitted from the DLO to the bargaining agent.

Sample Grievance Presentation Document 

NJC Final Level Grievance Hearing – Presentation for the Grievor/Employer

NJC Reference: XX.X.XX
Departmental Reference: XX-XX-XX
Grievor's Name: XX

Representative: XX
Date: X X, 20XX

Background

Timeline

Arguments/Position

Conclusion/Closing Remarks

Appendices