What Is a Grievance?

A large part of the work RAAS does is to try to resolve conflict and misunderstanding between Members and the Employer, acting through the Administration.

• If this work is about the interpretation of provisions of the Collective Agreement for our Membership as a whole, it is dealt with by the Joint Committee on the administration of the Collective Agreement. Under Article 6.1, the parties have agreed to form a Joint Committee consisting of two (2) individuals appointed by the Employer and two (2) individuals appointed by the Association within ninety (90) calendar days of ratification. The Association and the Employer shall also each appoint one (1) alternate committee member.

• If this work is done on behalf of one or more individual Members to address their particular circumstances, it is grievance work. Some issues may go from one forum to the other, though under Article 6.4, the parties have agreed that the Joint Committee will not address any dispute that is, at the time, being addressed under the grievance and arbitration procedures.

Under Article 14.2 of the Collective Agreement, the term ‘grievance’ is defined as follows: 

• A grievance is a claim, dispute or complaint involving the interpretation, application, administration, or alleged violation of this Agreement.

Every inquiry or complaint that comes to the attention of RAAS is a potential grievance. Even informal inquiries that may seem minor have the potential to become significant. 

RAAS may call a 'grievance' anything from an informal inquiry to a formal complaint that must be resolved through arbitration. You should not be concerned, therefore, if RAAS refers to your matter as a 'grievance' even if you think it is just an informal inquiry. It just means RAAS is treating your matter seriously, not that you have unwittingly launched a formal grievance. 

RAAS assumes that you wish to resolve your matter expeditiously and with as little friction as possible. The sooner you come to RAAS with your concern, therefore, the better.  RAAS representatives will do their best to answer your questions or address your concerns quickly. 

If resorting to the formal grievance process is necessary, however, please be aware that under Article 14.3.1, notice of our intent to grieve must be within fifteen (15) working days after the occurrence of the incident giving rise to the grievance, or fifteen (15) working days from the date we became aware of the events giving rise to the grievance, whichever is later. There is some leeway if an informal problem-solving process was begun or if the Member(s) did not know about the circumstances right away or if the parties agree to an extension.  Still, timing is important. Under Article 14.3.2, if no action is taken on a grievance within the time limits specified, the grievance shall be deemed to have been withdrawn or settled, as the case may be.

Another important note is the confidentiality of the process. The grievance process is a confidential process until arbitration, should the process go that far. 

Arbitration is a hearing that is open to the public, and an arbitrator's rulings are public documents. 

Before that stage, the identity of the complainant is known only to a limited number of people within RAAS that normally includes members of the Grievance Committee or, in some cases, volunteers who accompany you and take notes at meetings with the Administration which are non-routine and potentially contentious; or which may raise labour relations concerns. 

The facts of any case are presented to the Grievance Committee without identifying the complainant, unless the complainant has consented or has shared their concerns with a member of the Grievance Committee.

All communications between the complainant and RAAS are confidential.  Information is shared only among RAAS representatives and their counterparts at FAUW, in accordance with the terms of our service agreement. Where a volunteer accompanies a Member to a discussion with the Administration, the volunteer will also be involved in those discussions. Communications between RAAS and the Administration about a Member's concerns are subject to prior approval by the complainant and are also subject to confidentiality restrictions.

RAAS owes a duty of fair representation (DFR) to Members, described in the Ontario Labour Relations Act as follows:

            74. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

This is a procedural right, not a right to a particular outcome.  If the outcome of a grievance process is not what the complainant would have preferred, this does not necessarily mean RAAS has breached its duty of fair representation.   RAAS represents the interests of the bargaining unit as a whole.  Sometimes the best interests of the Membership override the best interests of individual Members. 

If a Member believes RAAS has breached its duty of fair representation, the Member may file a complaint with the Ontario Labour Relations Board.

To reiterate, the grievance process can be anything from an informal inquiry to a formal matter that progresses to a Meeting with the Administration (Step 1a), to review by an ad hoc Dispute Resolution Committee (Step 1b), to Arbitration (Step 2) and in rare cases, judicial review (Step 3).   

2. Whom Does RAAS Represent?

Grievances can be filed by RAAS on behalf of an individual Member or a group of Members, or by the Employer (as a party to the Collective Agreement). 

Who files may be a matter of strategy, preference, or fact. If RAAS becomes involved in any issue that requires more than a quick response by email or phone, your RAAS representative will discuss with you what such involvement means, including carriage and confidentiality.

RAAS has jurisdiction to deal solely with issues arising out of the Collective Agreement. If the issue cannot be tied to a provision of the Collective Agreement, RAAS might still be able to make an informal inquiry, but it has no power to go further. The same applies to policies and procedures falling outside the scope of the Collective Agreement.  

RAAS cannot and does not mediate disputes between Members.  It can only handle complaints against the Employer, acting through the Administration.  

Chairs and Directors of academic units at Renison University College are Members. Our certification from the Labour Board excludes administrators at the rank of Academic Dean, Vice-President or higher from membership. RAAS will advocate on the side of a Chair or Director if he or she makes a complaint against individuals in the Administration. If a Member who is not a Chair or Director makes a complaint against a Chair or Director, however, then RAAS will look at the substance of the complaint to guide its actions.  If the complaint is about the Chair or Director as a colleague, this is a dispute between Members. RAAS cannot mediate such complaints and may refer the matter to the Administration for remedy. 

If the complaint is about a Chair or Director acting with delegated administrative responsibilities, RAAS will advocate on the side of the RAAS Member who is not a Chair or Director. This recognizes the fact that the Chair or Director in such a case is acting on behalf of the Employer.

In cases where it is difficult to determine whether RAAS can legitimately take on a case, the Grievance Committee will review the situation and make a determination. It is also important to note that RAAS must always keep in mind its duty to promote the greater good of the bargaining unit as a whole and not simply what is best for an individual Member. RAAS is not, therefore, an advocate for an individual in the same way a privately hired lawyer would be.

3. Informal Queries

Any member of the bargaining unit may approach any member of the Grievance Committee with an informal inquiry.  An informal inquiry is often best handled by a telephone conversation or short email. 

When a situation starts to become more complicated, however, the Member should submit a written description (electronic or paper) to ensure greater accuracy of detail and to preserve the characterization of the situation from the Member's perspective. Notes from a long phone call can often contain inaccuracies or omit important details, potentially causing delays and frustration, so writing down inquiries or complaints is advisable.

An informal inquiry can be made and a Meeting with the Administration (Step 1a) (described below) can be requested by RAAS on behalf of a Member or Member(s), by RAAS alone, or by the Employer. 

For ease of explanation, the following describes the procedure involving a grievance on behalf of a Member, but a similar process applies in other situations.

4. Who Assists You?

A Member who brings a concern to RAAS is entitled to have it dealt with seriously and in confidence. Members of the Grievance Committee assist with the pursuit of inquiries or complaints and often consult with each other and their counterparts at FAUW to make sure that Members get the best advice possible. Depending on the nature of the inquiry or complaint, a RAAS or FAUW advisor may be better suited. 

If the issue is of a more systemic nature, affecting other Members of the bargaining unit similarly, it may be better dealt with at the Joint Committee for a more systemic solution. Because of the confidential nature of the grievance process, RAAS representatives will let you know if it is necessary to involve others so that you may decide whether to continue with your query or complaint.

The Grievance Officer

The Grievance Officer's primary role is investigating and assessing individual complaints arising under the Collective Agreement, and making recommendations to the Grievance Committee and on to the RAAS Executive about whether to carry grievances to arbitration. 

To accomplish this, the Grievance Officer meets with Members, liaises with the Administration, consults with legal counsel for RAAS and/or FAUW, and obtains input from the Grievance Committee.  Many of the issues that come before the Grievance Officer and RAAS representatives are dealt with informally, at least initially.  Frequently, that necessitates communication with senior administrators representing the Employer. The administrators will then likely seek further information from relevant personnel. The Employer is aware that this is confidential information, but Members should know that people within the organization may be aware of attempts to resolve the issue, but only on a 'need to know' basis. 

If an informal query becomes a formal grievance and proceeds from Step 1a and Step 1b to Arbitration (Step 2), the Grievance Officer takes on an advisory role to outside legal counsel, who will handle the formal arbitration process for RAAS in conjunction with FAUW, in accordance with the terms of the service agreement.

RAAS Grievance Committee

1. The Grievance Committee is a standing committee of the RAAS Executive. It is composed of the RAAS President (or Vice-President, ex officio), a minimum of two RAAS Members, plus the Grievance Officer (Chair) and the FAUW representative:

2. the Grievance Officer (Chair);

3. the RAAS President (ex-officio) (or Vice-President);

4. at least two RAAS Members; and

5. the FAUW representative.

The President (or Vice-President) and the FAUW representative are non-voting members. As much as possible, Grievance Committee members should reflect the academic programs at Renison University College.  They should also be knowledgeable about diversity issues and the Collective Agreement.  Quorum shall be three (3) voting members.

Once a month, the Grievance Committee discusses policy issues, cases that would benefit from wider consultation, and situations as they arise on campus that have the potential to trigger future grievances. The Committee monitors informal complaints, formal grievances, and other issues for the purpose of identifying systemic discrimination and deficiencies in the Collective Agreement, and to ensure that the Collective Agreement is being respected. 

Typically, cases are brought to the attention of the Grievance Committee without revealing the identity of the Member unless the Member indicates otherwise or has made their identity known. Occasionally, it will be necessary to have a volunteer or Grievance Committee member accompany a Member to contentious meetings where the Member's actions or situation are the subject matter of the meeting. This happens when the Grievance Officer cannot attend (time conflict, perceived or actual conflict of interest, multi-Member situations, etc.). In such a case, the RAAS volunteer attends in a supportive role and takes notes so that the Member can concentrate on the substance of the meeting. 

Without breaching confidentiality or jeopardizing the anonymity of a Member, the Grievance Committee brings policy issues of general concern to the attention of the RAAS Executive. For example, sometimes issues that arise in the Grievance Committee are referred to the RAAS Executive because they have broader applicability and are essentially interpretations of the Collective Agreement. Recommendations from the Grievance Committee to the RAAS Executive for proceeding to arbitration normally require that the identity of the Member be known.  The Grievance Committee Chair reports formally twice annually on the Committee's activities to the RAAS Executive and the General Membership. 

RAAS Executive 

RAAS Executive members are not given any substantive information about particular grievances unless they are required to decide whether a case ought to proceed to arbitration or for any other action implicating the service agreement with FAUW or requiring the expenditure of RAAS funds.

5. The Grievance Process

A Member may seek informal resolution of queries on their own. However, it may be wise to contact RAAS for assistance from the outset, or later as the need arises. Under Article 14.1.3 of the Collective Agreement, the parties have agreed to have carriage of grievances and to deal only with each other in respect to their grievances.

RAAS representatives will attempt to answer questions and resolve issues brought to them in an expeditious manner. Sometimes, this necessitates contact with senior administrative officers representing the Employer, including the VPAD.  The VPAD is responsible for academic labour relations, and as such is involved in negotiating and administering the Collective Agreement on behalf of the Employer. RAAS may also contact other offices to get information, to clarify process, etc. 

Sometimes, it is easier for a Member to get information from an office of the Administration (for example, Human Resources), and the Member will be so advised. Resolution may also necessitate the involvement of colleagues.  RAAS advisors will let you know if it is necessary to involve others so that you may decide whether to continue with your inquiry or complaint. 

This is called the informal grievance process. The length of time it takes can vary depending on the nature of the issue and the willingness or ability of the Administration to resolve it. The hope always is to reach a mutually agreeable resolution without the need to resort to the next step.  Under Article 14.1.4, the parties to the Collective Agreement have agreed that nothing precludes the informal resolution of disputes at any time before or during the formal grievance process.

The next step involves launching a formal grievance.  Step 1a is a closed-door, "off the record" Meeting with the Administration, with the following usually present: the Member, the administrator(s) whose actions are the subject of a grievance, a RAAS representative, a Joint Committee representative, and the VPAD as the senior administrator who has decision-making power to reverse or uphold the decision(s) that led to the launching of the grievance. All possibilities are explored.  Where the VPAD is the administrator whose actions are the subject of a grievance, the President has decision-making power to reverse or uphold the decision(s) that led to the launching of the grievance. 

If no resolution is reached at the Step 1a meeting, then under Article 14.6.5, RAAS or the Employer may request in writing that an ad hoc Dispute Resolution Committee [DRC] be formed (Step 1b). If both parties agree to its formation, the DRC will hold a meeting within thirty (30) calendar days of receipt of this request.

Arbitration (Step 2). 

Arbitration is a hearing (litigation) rather than a meeting, anyone may attend, and it is adversarial, with outside lawyers employed. The decisionmaker is a professional arbitrator who may or may not have any knowledge of what it is like to work in a university, and who has limited remedies that he or she may impose should the griever be successful.  For example, the arbitrator may order that the Employer pay the Member some money, or the arbitrator may direct the Employer to undertake a Collective Agreement process again but properly this time. 

If the arbitrator's decision exceeds the powers given or the arbitrator makes a mistake in how the circumstances should have been assessed (these rules fall within the ambit of administrative law), then either party may seek judicial review (Step 3). This extremely rare step is not an appeal, but rather a review by justices on the Ontario Supreme Court of the process and whether the arbitrator followed the rules in arriving at the decision. It is not a review of the substance of the issue(s). 

6. Possible Outcomes 

At any stage of the processes described above, up until an arbitration hearing has been completed, the matter could be settled informally or by way of a memorandum of agreement between the parties, or the parties could agree to settle or mediate an issue or some issues and proceed with others. While the legal parties to the Collective Agreement are RAAS and the Employer, the Member is usually involved in these discussions and settlements, but not always.  

Some people believe that a "day in court" is the only way to achieve justice and that a settlement is tantamount to "giving in" or to losing. This is not so. It is usually preferable to consider an outcome that is crafted by the people involved as there is greater scope for an imaginative agreement, those involved have a greater understanding of the potential implications of what could be agreed to, and there is a modicum of control that does not exist in an adversarial (arbitration or court) process. That said, sometimes the adversarial route must be taken and the matter taken to arbitration. 

The Member may also decide to withdraw or abandon a grievance after it has begun, and may direct RAAS to stop taking action. While it is normally the case that the grievance will not proceed any further even if RAAS has assumed the grievance, the Collective Agreement does allow for RAAS to proceed on its own without the Member if a resolution would be beneficial for the bargaining unit as a whole. 

It is worth repeating that RAAS deals with complaints against the Employer that arise out of the Collective Agreement.  RAAS cannot take formal action about anything that cannot be characterized as arising out of an abrogation of the Collective Agreement.  RAAS cannot act on complaints against other Members.

The Grievance Process

 Members who have a grievance follow a process that is outlined in the Collective Agreement. Please see Article 14: Grievance and Arbitration of the Collective Agreement for complete details. 

General Principles and Definitions

Under Article 14.2(a), a “grievance” is defined as

• a claim, dispute or complaint involving the interpretation, application, administration, or alleged violation of this Agreement.

There are different types of grievances, depending on who files them and on whose behalf they are filed.  Under Article 14.2.1, there are five types: 

• (a) individual grievances initiated by the Association on behalf of a Member;

• (b) group grievances initiated by the Association on behalf of a group of Members;

• (c) policy grievances initiated by the Association or the Employer;

• (d) association grievances which may involve a matter of general policy or of general application of the Agreement; and

  (e) Employer grievances initiated by the Employer against a Member,

  group of Members or the Association..

If the grievance is not resolved at Step 1a or Step 1b, it can only proceed to Arbitration (Step 2) with the approval of the Grievance Committee and RAAS Executive.

The VPAD is the administrative officer for the Employer responsible for labour relations with academic staff.  As such, the VPAD is involved in negotiating and administering the Collective Agreement on behalf of the Employer.  

The VPAD has decision-making power to reverse or uphold the decision(s) that led to the launching of the grievance. Where the VPAD is the administrator whose actions are the subject of a grievance, the President has decision-making power to reverse or uphold the decision(s) that led to the launching of the grievance.

Some parts of grievance proceedings are characterized as “without prejudice.” That means that what is said is not binding on future proceedings. It is often useful to have conversations “without prejudice” so that people can brainstorm and problem-solve without risk of committing to a course of action. 

Grievances often result in written resolutions. These are often characterized as “without precedent,” which means that what is agreed to does not establish a precedent or new rule that can be relied on in future situations with similar characteristics. As grievances are often about individual concerns, their resolutions don’t always make sense for broader application, and so “without precedent” is used to limit applicability.

All grievance matters are treated confidentially. All exchanges of information with the Administration are to be treated as confidential by the Member, by RAAS, and by the Employer. 

RAAS is committed to maintaining the confidentiality and privacy of Members who come to us for assistance. RAAS representatives may share information among themselves and with their counterparts at FAUW to ensure high-quality responses.

Stages of Dispute Resolution

 There are three stages to the grievance process for RAAS Members:

• Informal Inquiry (Article 14.1.4)

• Step 1a (Article 14.6.1 to 14.6.4)

  Meeting with the Administration with a view to resolving a grievance) 

• Step 1b (Article 14.6.5 to 14.6.7)

  Ad hoc Dispute Resolution Committee [DRC]

• Step 2 (Article 14.7)

  Arbitration before an external labour arbitrator

• Step 3 (Judicial Review)

Informal Inquiry (Article 14.1.4)

Members can, with or without the involvement of RAAS, seek to resolve disputes informally. Members are welcome to contact RAAS for advice even if they wish to attempt informal resolution on their own without filing a grievance. RAAS representatives will generally respect a Member’s wishes concerning the role of RAAS at this stage, so Members are encouraged to seek advice whether or not they want direct intervention.

If contacted, RAAS representatives will attempt to answer questions and resolve issues brought to them. Sometimes this necessitates contact with senior administrative officers, especially the VPAD. Resolution may also necessitate the involvement of colleagues. Because of the confidential nature of the process, RAAS advisors will let you know if it is necessary to involve others so that you may decide whether to continue with your query or complaint. 

These procedures are deemed an informal inquiry. The length of time it takes can vary, depending on the nature of the issue, the information required, and the willingness or ability of the Administration to resolve the situation. The hope is always to reach a mutually agreeable resolution in a relatively contained manner without the need to resort to the next step.  

If resort to the formal grievance process is necessary, please be aware that under Article 14.3.1, either party to the Collective Agreement must file a grievance according to procedures outlined in Article 14.6: Grievance Process within fifteen (15) working days after the occurrence of the incident giving rise to the grievance, or fifteen (15) working days from the date it became aware of the events giving rise to the grievance, whichever is later.

Step 1a: Meeting with the Administration begins the formal grievance process.

Under Article 14.6.1, a grievance shall be in writing signed by a representative from the Association or the Employer, as the case may be, and shall specify the matter(s) in dispute, the article(s) of the Collective Agreement alleged to have been violated, and the remedy sought.

Under Article 14.6.2, no later than ten (10) working days following the receipt of the grievance, the Employer representative shall meet with the Association representative and any Member affected. The parties shall make every reasonable attempt to resolve the grievance.

Under Article 14.6.3, if the grievance is resolved at this stage, such settlement shall be reduced to writing and countersigned by the Association representative and the Employer representative within ten (10) working days of the meeting at which the settlement was reached.

Under Article 14.6.4, in the event that the Association representative and the Employer representative cannot resolve the grievance the party denying the grievance shall provide the reason for denying the grievance in writing within ten (10) working days of the meeting(s) specified in Article 14.6.2 above.

A Step 1a: Meeting with the Administration involves a closed door, “off the record” meeting, with the following people normally in attendance: the aggrieved Member(s), the administrator(s) whose actions led to the launching of the grievance, the Grievance Officer or a Grievance Committee representative, and the VPAD, who has decision-making power to reverse or uphold the decision(s) that led to the launching of the grievance. Where the VPAD is the administrator whose actions are the subject of a grievance, the President has decision-making power to reverse or uphold the decision(s) that led to the launching of the grievance.

The order of proceeding in a Step 1a: Meeting with the Administration can vary, but generally conforms to the following pattern:

The VPAD introduces the Step 1a process, explaining that there may or may not be resolution at the end of the meeting. Then, Member(s) are asked to give details of their complaint. RAAS representatives may give a brief introduction before Members relate their story. This is followed by open discussion in which either party may seek additional information or propose solutions. At the end of the meeting, the parties decide whether a resolution can be reached or not.

At this meeting, possibilities for resolution of the dispute are explored. To have the freedom to have a free and frank discussion, discussions are not recorded and are not foundational to future proceedings. For both sides, the meeting is confidential and without prejudice. Usually, only the outcome is officially recorded, but even that may remain confidential. The goal is to reach a mutually agreeable solution and to remove as many barriers as possible that could hinder this goal. If the process is flawed, or should it become clear that no resolution is possible, any person at the meeting can pause or stop the proceedings.

If a resolution is reached, then a Memorandum of Settlement (MOS) will be drafted with the details and signed. If no resolution is reached, then a memorandum will be signed indicating that agreement could not be reached at the meeting. 

If there is no resolution, then either another meeting will be scheduled to continue the discussion or the decision-maker (the VPAD or President) will consider what was presented, make a decision, and will send that written decision to the aggrieved Member(s) within 10 working days.

If the Step 1a: Meeting with the Administration does not produce a satisfactory resolution, the next step is Step 1b: Ad hoc Dispute Resolution Committee. 

Under Article 14.6.5, either party may, within fifteen (15) working days of receipt of the response specified in Article 14.6.4 request in writing that an ad hoc Dispute Resolution Committee [DRC] be formed. If both parties agree to its formation, the DRC will hold a meeting within thirty (30) calendar days of receipt of this request. The DRC will consist of two (2) persons appointed by the Employer, two (2) persons appointed by the President of the Association, and a fifth person (who will act as Chair) appointed by the other four members. The fifth person may be a person who is not a member of the immediate Renison community and may be a person who has proven experience of dispute resolution in other contexts.

Under Article 14.6.6, in the event that the DRC cannot resolve the grievance within 10 working days of the meeting, the Chair of the DRC shall inform the parties in writing that the matter remains unresolved.

Under Article 14.6.7, all grievance-related discussions directed at the settlement of a grievance, including the DRC meeting are privileged and confidential and cannot be relied upon in any subsequent arbitration.

Step 2: Arbitration (Article 14.7)

At this stage, the grievance becomes less confidential, and the Grievance Committee will learn the identity of the Member(s) because it will be asked to consider the question of whether RAAS should take the grievance to Arbitration. The Grievance Committee hears the facts of the case and makes a recommendation to the RAAS Executive to pursue the grievance through external arbitration or not.

The Executive must approve the move to Step 2: Arbitration because it requires a greater expenditure of resources and so must be seen to be in the best interests of a Member or the bargaining unit as a whole. 

Under Article 14.7.1, either party to a grievance may, within fifteen (15) working days of receipt of the written notification or date by which it was to be received as specified in Article 14.6.6, give written notice of its intention to submit the matter in dispute to an arbitrator for final and binding arbitration.

Under Article 14.7.2, the arbitrator will be selected by agreement between the parties.

Under Article 14.7.3, the arbitrator shall have the duty and power to adjudicate all matters in dispute, including whether the matter is arbitrable.

Under Article 14.7.4, the arbitrator shall proceed with all dispatch with the inquiry into the grievance, and in accordance with such procedures and mode of proof that the arbitrator deems appropriate.

Under Article 14.7.5, the arbitrator shall have jurisdiction to award such remedy or remedies as the arbitrator deems appropriate; however, the arbitrator shall not have the power to alter, add to, modify, or amend the Agreement in any respect whatsoever, nor render an award inconsistent therewith.

Under Article 14.7.6, the parties to the arbitration shall share equally the fees and expenses of the Arbitrator, except that, in the case of a grievance against dismissal for cause or an Employer’s grievance, these costs shall be paid entirely by the Employer. Where the Employer grievance is upheld by the arbitrator, the Association shall reimburse the Employer for one half of such arbitrator’s fees and expenses. The costs of presenting a case shall be borne by the respective parties.

Arbitration is a hearing rather than a meeting, and is adversarial, usually with litigation lawyers employed by both sides. The hearing is open to the public, and arbitral decisions, like judicial decisions, are public. An arbitration feels like a courtroom proceeding. The decision-maker is a professional arbitrator who may or may not have any knowledge of what it is like to work in a university, and who has limited remedies that he or she may impose should the grievance be successful.

Not all grievances proceed to Arbitration. Some of the reasons RAAS may decide not to take a grievance forward include:

• there are already or have recently been similar grievances moved to Arbitration such that more in the same vein may not be necessary or such that the outcome is predictable;

• the evidence is not clear or sufficient;

• the matter appears to be frivolous or vexatious;

• arbitral proceedings would be disproportional to the severity or importance of the breach or action giving rise to the grievance;

• there is no remedy;

• the only available remedy involves harm to RAAS Members;

• the interests of the bargaining unit would not be served were RAAS to “win” at arbitration;

• the grievance cannot be “won” and/or the risk of “losing” is too great; or

• the costs of proceeding to arbitration are too high. 

Arbitration is expensive, as the costs include paying outside legal service providers to prepare for the hearing as well as costs associated with the actual hearing day(s), including the arbitrator’s fees.

Remedies at arbitrations are limited, and are often either financial compensation or a direction to repeat a Collective Agreement process that is found to have been faulty. Creative solutions do not come out of Arbitrations. For example, a Member who has experienced difficulty at work resulting in disputes with the Employer may benefit from a complex reorganization of their work assignment over a period of time to resolve the dispute. An arbitrator may uphold the grievance and order that the rules of the Collective Agreement be observed, but he or she is unlikely to award a specific and complex resolution of the Member’s problem. For that reason, a good settlement before Arbitration is usually preferable to “winning” at Arbitration, and might indeed be a better “win” for the Member, as it can be more nuanced.

Accordingly, RAAS will only exercise its right to proceed to Arbitration in the most serious of cases.  In deciding whether or not to proceed, the RAAS Executive Committee must weigh all factors. If the decision is taken to proceed to Arbitration, RAAS will, under the terms of its service agreement with FAUW, normally retain a lawyer who has skill and expertise in presenting cases to an adjudicator in a labour law setting. RAAS will send the lawyer any evidence it has in connection with the grievance. The lawyer will likely ask questions of RAAS, the Member, and any potential witnesses. The lawyer will put together a legal argument on behalf of RAAS and provide evidentiary materials to the lawyer for the Employer.  The lawyer for the Employer will do likewise.

The arbitration hearing(s) will normally take place in Waterloo, and a professional arbitrator will preside over the proceedings. In attendance will be lawyers hired by each side, advisors for the parties (RAAS and Employer), the aggrieved Member(s), the persons whose actions gave rise to the grievance, witnesses, and any supportive family or friends the aggrieved Members may wish to have in attendance. It is an open hearing, and members of the public and the media might also attend. 

On the first day of Arbitration (and there are usually multiple days scheduled), preliminary issues are dealt with, such as setting the scope of the hearing. There is often a last-minute attempt to settle the dispute before the formal hearing begins. If both parties agree, the arbitrator may act as a mediator and try to bring the sides to agreement. Generally, if settlement is possible, it will be accomplished this first day. If a settlement is achieved, a MOA will be produced outlining the terms, and the arbitrator will be seized with helping the parties to ensure that the settlement is acted upon.

If the parties decline to attempt to settle, or if the arbitrator’s efforts aren’t successful in bringing them to agreement, the formal hearing will commence. Each side will present evidence, both written and verbal, following which the arbitrator will render a written decision. This process often takes months and sometimes years.

Step 3: Judicial Review

If the arbitrator exceeds his or her powers or makes a mistake in how the circumstances were assessed (these rules fall within the ambit of administrative law), then either party may seek judicial review of the decision. This is a review of the process by justices on the Ontario Supreme Court, and the question of whether the arbitrator followed the rules in arriving at the decision. It is not a review of the substance of the case.

Duty of Fair Representation

The duty of fair representation (DFR) is described in the Ontario Labour Relations Act:

             74. A trade union or council of trade unions, so long as it continues to be entitled to  represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory, or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be. 

This is a procedural right, not a right to a particular outcome.  If the outcome of a grievance process is not what the complainant would have preferred, this does not necessarily mean the union has breached its duty of fair representation.   RAAS represents the interests of the bargaining unit as a whole.  Sometimes the best interests of the Membership override the best interests of individual Members.

If a Member believes RAAS has breached its duty of fair representation, the Member may file a complaint with the Ontario Labour Relations Board.

Member Responsibilities

The grievance process takes time, and is limited in what can be addressed and what solutions can be found. It depends on the ability of RAAS representatives to make good arguments based on sound facts. It is part of labour relations between RAAS and the Employer, and is thus based, in part, on building and maintaining trust between the parties. For all of these reasons, the process makes specific demands on Members.

Members have the right to the processes for grieving outlined in the Collective Agreement, but should be prepared to be patient, as these take time. If a Member is unsure of why there are delays or if the delays are causing harm, please raise this with a RAAS representative.

Labour disputes of any kind are infrequently “won”; both sides generally work for a resolution that is mutually palatable given the complexity of the case. As a trade union, RAAS aims to enable all parties to resume their working relationships, and that goal is not well-served by punishment or humiliation of the erring party, no matter the gravity of the error.

Members must bring the whole story to their RAAS representatives as early in the process as possible. This often requires Members to trust RAAS with sensitive information. Withholding it does not help in the long run even if the information appears to be prejudicial to the Member’s case. It is likely to come out during formal proceedings in any case, and if a Member hasn’t been completely forthright, it may weaken the case or damage the Member’s credibility.

Finally, Members should be prepared to take an active role at different stages of the process. Some of the essential work that Members do includes:

• compiling and sharing complete and accurate records (notes, emails, memos, etc.) of the events relevant to the grievance when asked;

• checking that the RAAS representative handling the case is representing the facts accurately; 

• coming to meetings prepared to discuss the issues at hand and sticking to those issues;

• being forthcoming with the RAAS representative about any special needs or considerations (time restraints, health concerns, work demands, etc.) that may affect the process;

• maintaining strict confidentiality about the process and attendant documents to which the Member has access;

• being responsible to ask if anything is unclear and to read background information as requested.

If you have questions that are not answered here or that you feel are not being addressed by your RAAS representative, you can raise them with a member of the Grievance Committee.

RAAS Records

The RAAS Secretary / Treasurer keeps a record of Member concerns for statistical purposes and as background should the matter take on greater significance. RAAS maintains an in-house, user-limited and password-protected electronic database to track queries and grievances. Sometimes, there is also a paper file that is kept in a locked drawer in the RAAS office. Only members of the RAAS Executive have access to these electronic and paper records. 

Correspondence between Members and RAAS representatives, including email, is confidential if it is in connection with rights under the Collective Agreement and conducted with the expectation of confidentiality. The Employer must respect and abide by this rule.

If a matter proceeds to Step 1a and Step 1b, some evidence from the file will be shared with the administrative officer with decision-making power to reverse or uphold the decision(s) that led to the launching of the grievance, who will in turn share it with others in attendance at the Step 1 Meeting with the Administration. 

If a matter proceeds to Step 2, legal counsel for RAAS will have access to all materials in the file, and then the contents are protected by solicitor client privilege and litigation privilege.

Communications with lawyers retained by RAAS are protected by solicitor-client privilege. RAAS records older than 10 years will usually be destroyed if no additional material is added to the same file.

Protocol on the Handling of Inquiries by RAAS Representatives

1.         All matters of grievance shall be kept strictly confidential.  Any information about a Member’s issues or concerns should not be shared with colleagues, superiors, friends, or domestic partners.  Bear in mind that when someone talks to you about an issue or problem, it will not always immediately present itself as a “grievance” per se.  Minor problems may turn out to be grievable issues, so it is prudent to refer all matters of concern to RAAS.

2.         Because the Collective Agreement is bilateral, RAAS representatives may not in a position to provide an authoritative interpretation of the terms of the Agreement. RAAS and the Employer may have discussed a vague or ambiguous provision, for example, and have arrived at a mutually agreed upon interpretation that has not yet been incorporated into the wording of the Collective Agreement.  RAAS representatives should not interpret the Collective Agreement for their colleagues.  Instead, they should refer their colleagues to the Grievance-related documents on the RAAS website and to Members of the RAAS Executive familiar with the meaning or scope of the provisions of the Collective Agreement.

3.         Members must contact RAAS personally if they wish further assistance.  It is up to the Member and not a RAAS representative or anyone else to make the decision about whether the Member pursues a matter with RAAS assistance or not. The RAAS advisor who brought the matter to the attention of RAAS will not be informed of the Member’s  decisions or actions as contact by the Member moves the matter into the realm of confidential proceedings.

4.         RAAS enters all queries from Members into a confidential database. Confidentiality allows RAAS officers to consult with each other and their counterparts at FAUW without explicitly informing the Member so that they can take advantage of various sorts of expertise and knowledge they have, in keeping with the terms of our service agreement.  This is done in the Member’s best interests and RAAS will not discuss or take the matter any further without the Member’s consent.

7.         A Member’s wish to remain anonymous and to determine whether RAAS intervenes must be respected.  However, RAAS appreciates receiving timely indications of individual or multiple instances (whether a Member’s name is provided or not) in which  violations of the Collective Agreement may have occurred in any academic unit. 

8.         The Grievance Officer will contact the inquirer to gather and record as much        information as possible. If there is a potentially grievable issue, the inquirer will be    asked to submit a brief written account of the events in question to the Grievance           Officer and/or to a RAAS representative so that the query may be investigated based on an accurate account of the individual’s concern.

Protocols for Carriage, Confidentiality, Disclosure, and Duty of Fair Representation

Carriage

If a Member wishes RAAS to proceed with an informal inquiry about their terms and conditions of work, the Member will give RAAS control of the process by allowing RAAS to decide strategy, mode, substance of representation and advocacy, and how far to take the matter. The Member’s input to these decisions will be sought. This form of control is called carriage.

If Members take complaints or inquiries to forums where RAAS does not have carriage, this Protocol does not apply. It is important for Members to remember that strategy and actions in those other forums may have a bearing on what RAAS is able to accomplish, and so ongoing communication is advised.

Confidentiality

Confidentiality is important to the work of RAAS.  RAAS will treat information provided by  aggrieved Members as confidential. This does not mean that the information will remain only between the Member and the RAAS representative contacted. It means that the information will be shared only with those who need to know within RAAS and FAUW, in keeping with the terms of our service agreement.

Some of the people who may need to know as the process unfolds include RAAS Member service providers such as the Grievance Officer, the RAAS President, RAAS volunteers who accompany Members to meetings, their counterparts at FAUW and other affiliated organizations, the office of the VPAD and anyone the VPAD might have to contact to achieve resolution of the issue. Members of the Grievance Committee may be asked for advice, but they are given only limited and necessary information

Everyone involved in this process is aware of or made aware of the requirement of confidentiality. Nonetheless, it is important that Members realize that other people at Renison University College may come to know about issues and attempts to resolve them.

Breach of confidentiality can have serious repercussions, including tainting the process or jeopardizing resolution of the matter. If RAAS has carriage of a matter, then aggrieved Members must treat all information about the case as confidential unless given permission by RAAS to discuss specific issues with designated persons. RAAS representatives will let Member(s) know if they find it necessary to involve others so that the Member may decide whether to continue with the process.

Disclosure

Aggrieved Members must provide all relevant information, whether favourable or unfavourable, so that RAAS can put forward the best case possible. It is a common misunderstanding that unfavourable information should be hidden because revealing it will reflect negatively on the aggrieved Member(s). However, at some point, unfavourable information will come out and it is best for the RAAS representatives to know about it in advance so that they are not surprised.  It is much easier to come prepared to deal with unfavourable information. In addition, concealing information can reduce the credibility of the Member and of RAAS, and could stand in the way of reaching a satisfactory solution.

RAAS has an obligation to all Members of the bargaining unit. It may have to investigate complaints in order to make an informed decision about whether to pursue them or not. If RAAS must speak to someone outside of RAAS or FAUW or other affiliated organizations to gather information about a complaint, then it will seek the Member’s permission. If that permission is denied, then RAAS will have to assess whether and how it may take the complaint forward.

Duty of Fair Representation

The union owes a duty of fair representation (DFR) to Members, described in the Ontario Labour Relations Act as follows:

             74. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit,   whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

 This is a procedural right, not a right to a particular outcome.  If the outcome of a grievance process is not what the complainant would have preferred, this does not necessarily mean the union has breached its duty of fair representation.   RAAS represents the interests of the bargaining unit as a whole.  Sometimes the best interests of the Membership override the best interests of individual Members.

If a Member believes RAAS has breached its duty of fair representation, the Member may file a complaint with the Ontario Labour Relations Board.

Policy for Step 2 (Arbitration)

The exercise of the right of RAAS to proceed to arbitration is normally reserved for the most serious of cases because of the cost, the limited nature of remedies, and the uncertainty of outcomes. The following represent the kinds of cases that require serious consideration of the use of that right.

Primary Importance:

1. Job threatening decisions

Items 2-5 are of Equal Weight:

2. Serious violations of non-discrimination provisions

3. Major violations of academic freedom

4. Policy interpretations of the Collective Agreement that significantly threaten its integrity

5. Excessively punitive action against a Member or Members

Residual:

6. Abuse of management rights

7. Any other action by the Employer deemed to require RAAS assistance

The RAAS Executive decides whether to move a grievance to Step 2 (Arbitration), on the basis of recommendations from the RAAS Grievance Committee or the Joint Labour Relations Committee.

At least one Member of the RAAS Executive will attend arbitration proceedings to represent RAAS and its interests.

Grievance Committee Terms of Reference

RAAS Grievance Committee

1. The Grievance Committee is a standing committee of the RAAS Executive. It is composed of the RAAS President (or Vice-President, ex officio), a minimum of two RAAS Members, plus the Grievance Officer (Chair) and the FAUW representative:

i. the Grievance Officer (Chair);

ii. the RAAS President (ex-officio) (or Vice-President);

iii. at least two RAAS Members; and

iv. the FAUW representative.

The President (or Vice-President) and the FAUW representative are non-voting members. As much as possible, Grievance Committee members should reflect the academic programs at Renison University College.  They should also be knowledgeable about diversity issues and the Collective Agreement.  Quorum shall be three (3) voting members.

2. The mandate of the Grievance Committee shall be:

·      to provide input and advice to the Grievance Officer on all grievances brought to the attention of the Grievance Committee;

·      to provide other assistance in specific cases at the Grievance Officer’s request;

·      to assess any policy issues that arise in the context of individual Member grievances, and consider whether further action should be taken to address systemic problems;

·      to bring policy issues of general concern to the attention of the RAAS Executive, without breaching confidentiality or in any way jeopardizing the anonymity of aggrieved Members;

·      to monitor queries and complaints, grievances, and other issues that come before the Grievance Committee for the purposes of identifying systemic discrimination and, where necessary, to consider whether a group or association grievance might be warranted;

·      to monitor the practices of administrators to ensure that the collective agreement is being respected;

·      to make recommendations to the RAAS Executive about whether to carry grievances forward to arbitration;

·      to report at least twice a year to the RAAS Executive; to report to the Membership at large in a written report and/or an oral report at annual general meetings;

·      to identify deficiencies in the Collective Agreement and to report, with recommendations, to the RAAS Executive and the negotiating team. 

3. If a majority of the voting members present at a Grievance Committee meeting disagrees with a decision of the Grievance Officer on how to proceed with any given grievance, the Grievance Committee may advise the RAAS Executive of that disagreement and may make alternate recommendations to the RAAS Executive.

Grievance Appeals Policy

Preamble

RAAS is committed to defending the rights of its Members as outlined in our Collective Agreement. With regard to individual Members, this ranges from providing advice and accompaniment during informal inquiries, to filing and arguing formal grievances, to bringing formal grievances before Arbitrators for third party adjudication. 

This policy affords Members processes to appeal a decision by the Grievance Committee to abandon a grievance. Such decisions arise when a grievance has proceeded to a Step 1a Meeting with the Administration and a Step 1b ad hoc DRC and the grievance has been denied. At this point, RAAS must decide whether to take the grievance to Step 2 Arbitration or to abandon it.

The Grievance Committee is the first body that considers this question and makes a recommendation to the RAAS Executive. The RAAS Executive makes the final decision to proceed or not to proceed to arbitration. 

RAAS is responsible for ensuring that these decisions are made in a non-arbitrary, non-discriminatory and good faith manner in recognition of its duty to fairly represent its Members. Factors that may be taken into account in these decisions include Collective Agreement limits and impacts, impact on the aggrieved Member, legal merits, costs, and possible remedies. These decisions are considered at special single-purpose RAAS Executive meetings.

This policy affords aggrieved Members one opportunity to appeal a decision to abandon a grievance (that is, a decision not take it to Step 2 Arbitration) either in the case that the Grievance Committee does not recommend taking the grievance to arbitration or, if the Grievance Committee has recommended arbitration, in the case that the RAAS Executive does not concur. If this internal appeal is unsuccessful, the Member will be reminded of their right to file a complaint against RAAS with the Ontario Labour Relations Board

I. Appealing a Decision to Abandon the Grievance by the Grievance Committee

a.         In the event that the Grievance Committee does not recommend taking a grievance to Step 2 Arbitration, the Member on whose behalf the grievance was filed will be informed in a timely fashion, normally by the next business day.

b.         The Member will have 10 business days to notify the Grievance Committee Chair that they wish to appeal this decision to the RAAS Executive. The Grievance Committee Chair will inform the President.

c.         The RAAS President will call a Special RAAS Executive meeting and will inform the Member of the date of the meeting.

d.         The RAAS President will inform the Administration that there is an internal appeal process in effect so as to hold in abeyance timelines for informing the Employer of RAAS's intention to proceed to Step 2 Arbitration.

e.         The Grievance Committee will provide the RAAS Executive with the same background information they would have received had the Grievance Committee made a positive recommendation to proceed to Step 2 Arbitration.

f.          The decision of the RAAS Executive will be communicated to the Member in a timely fashion, normally by the next business day following the Special Meeting.

g.         If the RAAS Executive agrees with the Grievance Committee, the Member will be reminded of their right to file a complaint with the Ontario Labour Relations Board and the Administration will be informed that RAAS will not be taking the grievance to             arbitration.

II. Appealing a Decision to Abandon the Grievance by the RAAS Executive 

a.         In the event that the RAAS Executive does not decide to take a grievance to Step 2 Arbitration, following a positive recommendation from the Grievance Committee, the Member will be informed in a timely manner, normally by the next business day.

b.         The Member will have 10 business days to notify the RAAS President that they wish to appeal this decision to an Ad Hoc Appeals Committee. 

c.         The RAAS President will select two names from a pool of RAAS Members not currently serving on either the Grievance Committee or the RAAS Executive to form an Ad Hoc  Appeals Committee.

d.         The RAAS President will inform the Administration that there is an internal appeal process in effect so as to hold in abeyance timelines for informing the Employer of RAAS's intention to proceed to Step 2.

e.         The Ad Hoc Appeals Committee will be instructed to review the case to determine if there have been any procedural errors or if there is any indication of bad faith, arbitrariness or bias in the actions taken by RAAS in coming to this decision. If they find any of these, they may recommend that the RAAS Executive reconsider its decision. The Ad Hoc Appeals Committee will not be asked to decide, based on the substance of the grievance, whether it should be arbitrated.

f.          The Ad Hoc Appeals Committee will have access to the full grievance file.  Its members may confer with one another. They may issue separate recommendations or a single recommendation, and they do not have to reach consensus.

g.         The Ad Hoc Committee will have 15 working days to conclude its work and will inform the RAAS President of its findings.

h.         The RAAS President will inform the Member of the decision(s).

i.          In the event that the Ad Hoc Appeals Committee finds no procedural error, bad faith, arbitrariness or bias, the matter will close and the Administration will be informed that RAAS will not be taking the grievance to arbitration.

j.          In the event that one or both members of the Appeals Committee finds procedural error, bad faith, arbitrariness or bias, the President will call a second Special RAAS Executive meeting to consider the Committee’s findings and to reconsider the decision to abandon the grievance.

k.         The RAAS President will convey this second and final decision to the Member in a timely fashion.

l.          If the RAAS Executive does not reverse its decision, the Member will be reminded of their right to file a complaint with the Ontario Labour Relations Board.