Employment Grievance Process Quiz

Industrial Relations - Week 10

• Course: ADM3334
• Professor: Qian Zhang
• Topic: Administration of the Collective Agreement

Announcements

• Group Assignment 2: Due today
• Peer Evaluation Form: Mandatory
• Mock Arbitration: In 2 weeks
• Final Exam: Survey
• Final Exam Details: December 13, 7-9 pm, DMS1140

Schedule and Assignments

• October 21: Union Organizing Drive and Certification (Chapter 6), Assignment 1 due (before class)
• October 28: The Collective Agreement (Chapter 7)
• November 4: Negotiation of the Collective Agreement (Chapter 8)
• November 11: Strikes, Lockouts, and Contract Dispute Resolution (Chapter 9), Assignment 2 due (before class)
• November 18: Administration of the Collective Agreement (Chapter 10)
• November 25: Mock Arbitration Activity (In-Class)
• December 2: Public-Sector Labour Relations (Chapter 11), The Future of Unions (Chapter 12)

Learning Objectives

• Identify limitations on management rights
• Explain how seniority affects employee placement, layoffs, and recalls
• Discuss human rights implications for collective agreement administration
• Explain grievance and arbitration process functions
• Outline formal and informal grievance steps
• Outline procedural and legal aspects of arbitration
• Describe disciplinary actions available to employers
• Apply discipline in compliance with the collective agreement and the law

Management Rights

• Employer actions relying on management rights are subject to limitations:
  • Must not contravene the collective agreement
  • Must be legal
  • Must not create an estoppel through previous statements or conduct
  • Must meet requirements set in the KVP Co. Ltd. case

Principle of Estoppel

• If a union relies on an employer's past practices in negotiations, the employer is prohibited (estopped) from changing those practices until the next negotiation cycle.

KVP Co. Ltd. Case

• Unilaterally introduced rules by the company, not agreed upon by the union, must meet specific requirements:
  • Not inconsistent with the collective agreement
  • Not unreasonable or unclear
  • Brought to the employee's attention before action
  • Employee notified of potential discharge if the rule is violated
  • Consistently enforced since introduction

Seniority

• Seniority is an objective factor, reflecting a member's length of service with the employer
• Employment legislation often mandates continued seniority accumulation during leaves (e.g., pregnancy, parental leave)
• Employees may lose jobs due to lack of seniority accumulation during absences, which can be considered discriminatory

Job Posting and Selection Process

• Employers may hire part-time employees for openings instead of posting for full-time positions
• Job specifications must be reasonable
• Job posting procedures must be applied fairly and without discrimination.
• Selection criteria in job postings and selection decisions should align

Assessing Skills and Ability

• Employment tests should be reliable, valid, and fairly conducted.
• Common interview process issues include: using questions irrelevant to job requirements, and overemphasizing interview results. Instead, consider prior performance appraisals and job history factors.

Ways to Increase Interview Validity and Fairness

• Keep job duty and qualification information current
• Limit interview use to assess only job-related skills
• Use structured interview formats.
• Limit pre-interview data about candidates.
• Apply multiple questions to assess key attributes
• Use formal scoring systems to assess each attribute separately.
• Properly train interviewers on the interview process and human rights issues.

Grievance and Arbitration Process

• Labour legislation necessitates detailed grievance and arbitration procedures within the collective agreement.
• The agreement outlines specific time limits for each step in the grievance process, and responses from the employer.

Significance of Grievance and Arbitration

• Functions:
  • Provides a dispute resolution mechanism
  • Enforces collective agreement compliance
  • Provides a forum for additional bargaining during the agreement's term
• Benefits:
  • Settles disputes without disrupting work
  • Resolves issues before the next negotiation cycle
• Management benefits:
  • Facilitates better communication and consultation between stakeholders
  • Checks on the quality and consistency of management decisions
  • Reduces employee turnover through involvement
• Rule "Obey now, grieve later": Employee must follow management directives unless the directive is illegal, unsafe, or violates the collective agreement.

Significance for Unions and Union Officials

• Provides a pressure-building tactic and a method of resisting management directives.
• Increases union solidarity and provides political advantages.

Grievance Procedures

• Grievance rate: Number of grievances filed divided by the number of employees
• Poor labour relations often associated with high grievance rates
• Ownership of the grievance: determining who decides whether a grievance is resolved, withdrawn or referred to arbitration (often the union).

Arbitration

• Rights (grievance) arbitration vs. interest arbitration: Interest arbitration is common in industries where striking isn't allowed, while rights arbitration covers employee grievances.
• Arbitrator selection: A Labour Relations Board usually selects arbitrators.
• Caseload: A few experienced arbitrators handle a disproportionate number of cases in each province, leading to delays.

The Arbitration Hearing

• Hearing process: Grievance representatives make opening statements, present evidence, examine witnesses, and deliver closing arguments.
• Burden of proof: Generally, the union (filing the grievance) has the burden of proof, except in discipline and discharge cases where the company bears the burden.

Cost of Arbitration

• Costs are shared equally between the employer and the union.
• Arbitrator fees: typically range from $2,000 to $3,500 per day.
• Payment of costs: paid by the union from dues, not the employee

Power of the Arbitrator

• Arbitrator Powers: To remove disciplinary action, substitute lesser discipline if appropriate, but not award punitive damages.
• Other remedies: Can order other remedies like compensation, correcting employee records, etc.
• Enforcement: Arbitrator decisions can be legally enforced as in an ordinary court order.

"Justice Delayed"

• Delay in awards: Commonly 6-9 months, primarily due to the pre-hearing stage
• Arbitrator Concentration: A small number of prominent arbitrators handle a big portion of cases in Ontario, which contributes to delays.
• Significant impact to both employees and employers

Importance of Delays

• Delays in decisions can have substantial impacts for employees (lost income or opportunity cost) and employers (impact on operations).

Alternatives to Conventional Arbitration

• Expedited Arbitration: Enables faster resolution by establishing shorter time limits.
• Grievance Mediation: Confidential process where a neutral mediator helps the parties negotiate a settlement.

Expedited Arbitration

• Statutory option in Ontario (OLRA since 1979)
• Governement often assigns sole arbitrator from the designated list
• Hearing commences within 21 days of referral
• Reduces delays and expense through written evidence, and reduced number of witnesses.

Grievance Mediation

• Confidential process, using neutral third-party mediator
• Mediation is "without prejudice"—concessions are not binding in subsequent arbitration.
• High success rate (>80%)
• Faster, more cost-effective, and less adversarial than arbitration.

Discipline and Discharge

• Burden of Proof: Employer bears the onus (burden) of proof.
• Just Cause Limitations: Employer's power to discipline is limited to actions undertaken for just cause.
• Discharge vs. Discipline: Discharge is punitive; discipline is corrective

Discipline

• Traditional methods: warnings, suspensions, discharge
• Uncommon methods: demotion, wage cuts
• Restrictions: Monetary penalties or loss of seniority are disallowed except where stated in the collective agreement. Employers can only discipline employees once for one incident.

Progressive Discipline

• Increasingly severe disciplinary actions for repeated offences
• Focus on bringing misconduct to the attention of the employee during the progressive stages of the disciplinary process. Often used in unionized workplaces.
• Culminating incident: in severe cases, additional offences may lead to dismissal when considering past performance.

Grounds for Discipline

• Grounds for imposing discipline: failure to attend work, unauthorized absences, tardiness, theft, falsification of records, misconduct, incompetence, insubordination, off-duty behaviour affecting the employer's business operations, and breach of company rules.

Factors Arbitrators Consider

• Arbitrators consider the seriousness of the misconduct, the employee's length of service, history of prior incidents, provocation by management or co-workers, whether the penalty causes undue economic hardship and the consistency and fairness of the disciplinary rules. The employee's apology may be a consideration.

Next Week

• Mock Arbitration Activity