Articles of Interest - What makes good grievance

by Monica Phillips, Counsel
June 2007

The Committee is often asked: what makes a good grievance? No definite guidance can be offered on how to either successfully argue or successfully defend a grievance as there are virtually an unlimited number of issues and fact situations that can arise. However, in the course of its Level II reviews, the Committee has noted problems with grievance files that either impact on the decision on the merits or result in delays.

This article will discuss key considerations in presenting and responding to a grievance. The need to fully explain the case, the burden of persuasion and the submission of evidence will all be reviewed. In addition preliminary issues that frequently arise in grievances, such as time limits, standing and disclosure, will be addressed. Finally, a few thoughts on presenting a Level II grievance will be noted. A diagram at the end of the article offers a visual summary of the various elements both Grievors and Respondents need to address in the course of Level I grievances.

One of the most serious problems occurs when one or both parties has failed to fully present their side of the grievance. When important facts, issues or explanations have not been identified, the case may be difficult to understand.

For both parties, the filing of the grievance form at Level I is not the first step. By the time the grievance presentation phase has occurred, the parties may have been dealing with the issue for some time and are usually very familiar with the facts and issues in dispute. For that reason, parties sometimes summarize the evidence or present the facts in only a broad way, assuming that it is already well understood. After all, they have already explained their position to the other side and heard what the other side has to say.

The problem with this is that the grievance adjudicator will know nothing of the dispute other than what he or she is provided by the parties. If either party fails to provide the facts and arguments on the record to support their position fully, the grievance may be decided in the other party's favour. For this reason, both parties must present their side of the story in a step-by-step fashion.

Firstly, both sides should ensure that their submission includes all the facts. Answer the "five W's": Who? What? Where? When? and Why?. In addition, parties should provide all the details available, including names, dates, times and locations. The grievance should clearly explain exactly what is in dispute and both sides should detail all the arguments in support of their position. Any documentary evidence in support should be explained and a copy should be included with the submission.

Both sides should also clearly identify any law or policy that is being relied upon and explain why they feel it supports their position. A copy of the law or policy, or an excerpt if appropriate, should also be included with the submission.

Finally, the parties should clearly identify the decision they are seeking from the grievance adjudicator and specifically indicate the redress or remedy that is being asked for.

The burden of persuasion means that a particular party to a proceeding has an obligation to prove their case. As the Committee explained in G-052 and recently reaffirmed in G-407, any time a person makes a claim, such as a grievance, that person has the obligation to establish the case to the decision maker before the other side has any obligation to respond. The Grievor has the initial burden of persuasion on the civil standard, a balance of probabilities.

Grievances that lack a factual foundation or submissions in support of the claim may be denied on the basis that the burden of persuasion has not been met. For example, in G-407 the Grievor disagreed with a decision that her harassment complaint was unfounded. Despite being provided with the investigation report and material it was based on, the Grievor made no specific submissions as to why the decision on the harassment complaint was wrong and provided no documents to support her claim. The Committee concluded that she had failed to discharge the initial onus and recommended that the grievance be denied. The Commissioner's decision in this matter is pending.

The need to establish a factual foundation for the grievance is especially important where it is apparent that the Grievor's personal information is required to establish the claim. In G-387, the Grievor claimed that he was provided with inadequate accommodation at the Kananaskis G-8 summit. However, he offered no information as to what was inadequate, uncomfortable or unsanitary about the accommodation. The Respondent provided general information about the amenities and how the accommodation was chosen, and the Grievor did not dispute this evidence or respond with any concrete complaints. As the person staying in the allegedly inadequate accommodation, it was up to the Grievor to provide the details to support his claims. The Committee recommended that the grievance be denied and the Commissioner agreed. In contrast, in another G-8 grievance where the inadequacy of the accommodation was explained in detail, the Committee recommended that the grievance be allowed (G-389, Commissioner decision pending).

Grievors should also take care to make submissions related to all of the grounds of their grievance. For example, in G-406 the Grievor was seeking reimbursement for capital improvement losses on the sale of his home upon transfer. In addition to arguing that the relocation policy allowed the payment, the Grievor also claimed that the failure to fully compensate him was a violation of his mobility rights under the Charter of Rights and Freedoms. However, the Grievor failed to provide reasons or arguments in support of this claim. The Committee declined to consider this ground on the basis that the Grievor had provided only a bald claim of a Charter breach. The Committee recommended that the grievance be denied. The Commissioner's decision is pending.

Once the initial burden of persuasion has been discharged, it is up to the Respondent to provide evidence and argument to rebut the Grievor's claim. Respondents should reply to all of the arguments advanced by the Grievor. Where a Respondent fails to refute the submission of the Grievor, the Grievor's submission will form the entire factual basis and may lead to the grievance being allowed.

For example, G-099 involved a joint grievance related to classification. The Grievors alleged that an extensive delay by the Force pending the creation of a mission statement was an error in process and established that there was no reference to the need for a mission statement in the classification policy. The Committee concluded that, if the Force had wished to maintain that mission statements were vital to the classification process, it was up to the Force to demonstrate this. Having failed to do so, the Committee recommended granting the grievance and awarding the Grievors 104 weeks of retroactive, upgraded pay. The Commissioner agreed.

Another example of the Respondent failing to rebut the case presented by the Grievor can be seen in G-301. There the Grievor complained that he had been ordered to use substandard barracks as out-of-town accommodation, contrary to the policy which entitled him to accommodation that was comfortable and of good quality. In support of his claim, the Grievor provided specifics as to what was wrong with the accommodation. The Respondent had initially claimed that the facilities were adequate, but then submitted any deficiencies should have been raised by the Grievor so that they could be corrected. The Committee concluded the Grievor's evidence about what he had observed at the barracks was not rebutted by the Respondent's claim that the facilities were supposed to be adequate. The Committee recommended that the grievance be allowed. The Commissioner agreed.

Both parties should also submit all the documents in support of their positions. If the documentation is missing from the file, the grievance may be returned for the record to be made complete. This was the case in G-374. There the Grievor disputed the manner in which her transfer from the public service into the Force was processed. The Adjudicator determined that the Grievor lacked standing as Treasury Board was the only authority for the decision, but the record provided no information as to what law or policy governed the transfer or who had made the decision to process the transfer. In this case, because the Grievor had not been provided with disclosure and neither party had made submissions, the Committee recommended that the matter be returned for the record to be made complete and the Commissioner agreed.

With very few exceptions, parties that fail to present their case fully at the first level will not be allowed to reargue the case at Level II. The circumstances under which a party may be able to add material to the file at the Level II stage is discussed below. However, as a general rule, both sides need to take extra care to ensure all the facts, evidence and arguments are included in their Level I presentations.

The grievance system, while not unduly complex, has a number of discreet phases and each party has obligations, even differing obligations, at each stage. Under the current system, the second step, after the filing of the Form 3081, is the Early Resolution Phase. During this phase, along with the merits, the parties are to discuss:

• whether they agree that Grievor has standing to grieve, as defined by section 31(1) of the Act;
• whether they agree that the grievance was filed within the time limits prescribed in section 31(2) of the Act; and,
• what disclosure the Grievor is entitled to under section 31(4) of the Act.

If no agreement is reached on any or all of these three preliminary issues, both parties should make full submissions explaining their position and the dispute should be referred to the Level I Adjudicator for a ruling.

For time limits, the member must establish that the grievance was presented at Level I within 30 days of the date the Grievor knew or ought to have known of the decision, act or omission. If the Grievor has any doubt that the grievance was filed within the time limits, he or she should make a submission on the reasons for the delay and provide justification for an extension of time.

Grievors who fail to provide this information may see their grievance denied strictly on the basis of time limits. In G-372, the Grievor missed the time limit for filing his grievance by one day at both levels. He failed to provide any explanation as to why he was late in presenting his grievance and there was no indication in the record that he otherwise intended to meet the statutory requirements. Further, the Grievor failed to respect the time limit at Level II even though the Level I Adjudicator had drawn to his attention the importance of timeliness by denying his grievance on that very basis. For these reasons, the Committee declined to recommend that the Commissioner provide an extension of time. The Commissioner agreed.

Respondents should explain why they feel the time limits were not met and respond to the Grievor's arguments, if applicable. They should also provide their position on whether or not an extension is warranted.

For standing, the Grievor must establish that he or she meets the five part test required by the Act, namely:

• that he or she is a member;
• that he or she has been aggrieved;
• by an act, decision or omission;
• that the act, decision or omission was taken in the administration of the affairs of the Force;and
• there is no other method of redress provided for under the Act, Regulations or a Commissioner's Standing Order.

Respondents should provide the reasons they believe that the Grievor lacks standing and should respond to the Grievor's submissions, if applicable.

For disclosure, the Grievor must establish three points: that the material is in the possession of the Force, relevant to the grievance and reasonably necessary to present the grievance. This is a low threshold and once it is reached the Respondent must make submissions on why the material is not being disclosed. In G-147, a grievance specifically about the Force's refusal to provide all the materials that the Grievor was seeking for another grievance, the Committee found that the Grievor had supplied all the information that he reasonably could in respect of why the information he sought was relevant. As the Force was in control of the material, the Grievor could not be expected to argue the specific contents. Once he established a general connection, the onus switched to the Respondent to establish that the denial was justified. The Respondent had failed to do so and the Committee recommended that the material sought be provided to the Grievor. The Commissioner agreed.

A further caution for Respondents is that they should not cite the Privacy Act or Access to Information Act as a reason for their denial of the disclosure request. The Committee has consistently held, and the Commissioner has agreed, that the Privacy Act is not a bar to disclosure (see for example G-380) and it is not acceptable for Grievor's to be told "make an access request" (see for example G-394).

More detailed information on the issues of standing, time limits or disclosure can be obtained via the Committee's website at http://www.erc-cee.gc.ca, at the "Articles of Interest" page.

If the Grievor is dissatisfied with the Level I decision and requests a Level II review, the issue of time limits should again be considered. The Grievor has 14 days from the date of service of the Level I decision to request that the matter be forwarded to Level II. If there is any doubt that this time limit has been met, the Grievor should provide details explaining how the time limit was met. Grievors should also provide reasons why an extension is warranted, if applicable. Again, a failure to provide reasons why an extension is warranted may lead to the grievance being denied.

Finally, in the Level II submission, Grievors should clearly identify why they disagree with the Level I decision. As stated above, new documentation will rarely be accepted at this stage. If a Grievor had new material that could not have reasonably been known to him or her at the time of their Level I submissions and the material was not considered by the Level I Adjudicator, the material may be allowed. Grievors should make arguments as to why this new material should be considered as part of their Level II submission, including why the Grievor could not reasonably have provided the material at the Level I phase.

Similar to Level I, Respondents should provide any arguments against the time limits being met, provide their position on the Grievor's objection to the Level I decision and respond to the arguments advanced by the Grievor. Respondents should also address any arguments on the admissibility of new documents.

Respondents cannot request a Level II review, but if the Grievor asks for the review, the Respondent can also make submissions if they disagree with the Level I decision. This could occur if the Level I allowed the grievance in part or if the Respondent feels that the decision was correct, but the reasoning was wrong.

When both Grievors and Respondents ensure that they are fully addressing both the procedural and substantive portions of the grievance, the process functions more smoothly. Grievances that are complete and where all the issues are fully argued are more likely to be decided on the merits and more likely to go through the process quickly. They are less likely to be returned to Level I or held in abeyance pending additional submissions or documentation. While there will be no guarantee that one party or another will prevail, this makes for a good grievance.