If you are an employee or an employer, you must be familiar with the term grievance or grievance arbitration. A grievance is a disagreement that concerns the interpretation or application of a collective agreement.
Indeed, even once the employer and employees reach an agreement and adopt a collective agreement, disputes relating to its interpretation may arise later on. The Labour Code provides a specific way to resolve disputes relating to the interpretation or application of collective agreements: grievance arbitration.
So here is everything you need to know about the grievance arbitration process in Quebec labor law.
What happens when there is a disagreement about the application or interpretation of a collective agreement?
In most collective agreements, the parties provide for an internal mechanism for settling grievances prior to arbitration. Thus, even before formulating a grievance, it is important to refer to the applicable provisions of the collective agreement. When the disagreement cannot be settled amicably, grievance arbitration is the recourse by which the dispute relating to the collective agreement must be settled.
Grievance arbitration will occur either when there is a challenge to an employer's decision or when a party requests the interpretation of a collective agreement. The grievance can be filed by the union or by the employer, but the union grievance is much more common than the employer grievance since the employer has more power in the application of the collective agreement.
Who are the parties involved in grievance arbitration?
Contrary to what one might think, even if the grievance is filed by an employee, the employee will not be a party to the arbitration. Instead, it will be up to the union to decide whether or not to pursue the grievance. Therefore, even if the dispute directly concerns an employee, the parties to the grievance will be the union and the employer .
However, a collective agreement may provide for an employee to file a grievance if the employer's decision concerns them. The employee can then follow the internal grievance resolution process. The union will then intervene at the time of arbitration.
In some rare cases, the collective agreement may even allow the employee to be involved in the grievance process at the arbitration stage. Another exception to this principle is provided for in the law, whereby the employee may present a grievance to an arbitrator themselves in the event of collusion between the employer and the trade union or in the case of bad faith on the part of the union.
The collective agreement concluded between the parties may also stipulate that the grievance procedure only applies to certain types of employees. For example, part-time or occasional employees may be excluded from the grievance procedure. However, it should be noted that if the dispute involves discrimination or arbitrary acts, these employees may still have recourse to the grievance procedure. It is also possible that the dispute concerns several employees and, in this case, a group grievance may be filed.
Is the subject of the grievance arbitration always the same?
In general, the grievance procedure exists either to challenge an employer's decision or to interpret an ambiguous provision in the collective agreement. However, the parties may decide, in the collective agreement, that the grievance settlement procedure also applies to the settlement of any other disagreement than a grievance.
In addition, the Labour Code provides that a dispute over the maintenance of working conditions may open the door to the procedure applicable to the settlement of grievances as long as the right to strike or the right to lockout has not been exercised by either party.
Are there any deadlines associated with the grievance procedure?
Generally, collective agreements contain provisions regarding the deadlines for filing a grievance and these are rather short. The deadline will start from the event or decision contested by the employee. However, the law provides that this type of deadline cannot be less than 15 days.
If the collective agreement is silent on the deadline for submitting a grievance, the law will apply and it indicates that the recourse resulting from a collective agreement can be initiated within a 6-month period.
As for the appointment of the grievance arbitrator, there is no deadline imposed by law, but the hearing must take place within a reasonable time. Failure of a party to act within a reasonable time will lead to the presumption that it has waived its recourse. The arbitrator may decide that the grievance is inadmissible for this reason.
How do arbitration sessions proceed?
Firstly, the procedure relating to the arbitration of a grievance may be governed by specific rules agreed upon by the parties in the collective agreement. If this is not the case, it will be up to the arbitrator to determine the appropriate procedure. Among other things, he may decide to convene the parties to a preparatory conference. He may also encourage a witness to appear, either of his own accord or at the request of a party.
Arbitration sessions are generally public, but the arbitrator has the discretion to order that the hearing be held in camera. The arbitrator may also visit the premises as part of his investigation and question the people present.
Finally, the law requires the arbitrator to act as quickly as possible and in accordance with the rules of natural justice, such as the obligation to act impartially and to allow the parties to be heard.
What happens at the end of arbitration?
At the end of the hearings, the arbitrator makes a decision, which is called the arbitral award. The arbitral award must be made within the time limit set out in the collective agreement. If the agreement does not provide for a deadline, the decision must be made within 90 days following the end of the arbitration sessions. However, this deadline may be extended with the agreement of the parties.
The arbitral award must be written, reasoned, and signed by the arbitrator. The arbitral award is a final decision, meaning that it binds the parties and they cannot appeal it. In some very exceptional cases, an application for judicial review may be presented to the courts.
JuriGo can help you find a labor lawyer to represent you before a grievance arbitrator!
Even though the existence of a collective agreement protects the interests of both the employer and employees, disagreements can arise regarding the interpretation or application of the agreement. Fortunately, the grievance procedure exists to challenge a decision made by the employer or to interpret a provision in the collective agreement.
Whether you wish to file an employer or union grievance or to defend yourself in the context of a grievance procedure initiated against you, you will need the advice of a specialized labor lawyer.
Fortunately, JuriGo is here to help you find expert labor lawyers who can advise and represent you in front of grievance arbitrators!
All you have to do is fill out the form at the bottom of the page, and we will take care of putting you in touch for free and without obligation with a labor lawyer specialized in grievance arbitration.