ARCHIVED - Guidelines on Adjudication (Draft)

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Guidelines on Adjudication (Draft)

These guidelines describe the administrative process whereby the Employer Representation Group of the Treasury Board Secretariat (TBS) and departments will be responsible, as employer, for managing grievances referred to adjudication.

Legislative base

The Public Service Labour Relations Act (PSLRA) provides for three types of grievances to be referred to adjudication: individual grievances (as per section 209), group grievances (as per section 216) and policy grievances (as per section 221).

Four types of individual grievances may be referred to adjudication under PSLRA subsection 209(1). They are grievances with respect to:

The interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award (the approval of the bargaining agent is required in order to refer that type of grievance to adjudication);
Disciplinary action resulting in termination, demotion, suspension or financial penalty under section 12 (1)(c) of the Financial Administration Act (FAA); and
1. Demotion or termination under paragraph 12(1)(d) of the FAA for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct;
2. Deployment under the Public Service Employment Act (PSEA), without the employee's consent where consent is required (upon the coming into force of the PSEA).

Authorities

Under section 12 of the FAA, deputy heads now have the direct authority to establish standards of discipline and set penalties, including termination of employment, suspension, demotion to a position at a lower maximum rate of pay and financial penalties that may be applied for breaches of discipline, misconduct or unsatisfactory performance. As a result, departments and agencies are accountable and responsible for handling grievances resulting from the exercise of those authorities.

Deputy Heads are a party and department and agencies are responsible for the following grievances referred to adjudication:

Grievances related to disciplinary action resulting in termination, demotion, suspension or financial penalty under section 12 (1)(c) of the FAA;
Grievances related to demotion or termination under paragraph 12(1)(d) of the FAA for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct;
Grievances related to deployment under the PSEA without the employee's consent where consent is required under section 209 (1)(c)(ii) (upon the coming into force of the PSEA).

If a subsidiary collective agreement issue arises in a grievance whose substance deals with one of the above, departments and agencies will continue to have carriage of the grievance. However, consultation with the Employer Representation Group, TBS must take place.

Treasury Board is a party and the Employer Representation Group, TBS, is responsible for the following grievances referred to adjudication:

Grievances related to the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;

Group grievances;
Policy grievances.
Application

These guidelines apply to all departments and agencies for which the Treasury Board is the employer; i.e. those listed in Schedule I and IV of the Financial Administration Act (FAA).

Definitions

Adjudication: means a quasi-judicial process whereby a third party gives the parties the opportunity to be heard or the opportunity to argue their positions (arbitrage);
Adjudicator: means a member assigned by the Chairperson of the PSLRB to hear and determine a grievance referred to adjudication as per sections 209(1), 216 or 221 of the PSLRA and includes a board of adjudication established under paragraph 223(2)(c), a person named as an adjudicator in a collective agreement and a person otherwise selected as an adjudicator by the parties to the grievance (arbitre).
Conduct money: means money required under PSLRA Section 248 to be given to a witness on the serving of a subpoena. This includes witness fees and travel expenses (indemnit� au t�moin);
Employee: means an employee as defined in the PSLRA, including for the purposes of grievances, a person who occupies a managerial or confidential position (fonctionnaire);
Employer: means Her Majesty in right of Canada as represented by the Treasury Board, in the case of a department named in Schedule I to the FAA or another portion of the federal public administration named in Schedule IV to that Act. Although deputy heads have many direct authorities under the FAA, the Treasury Board remains the employer for the purposes of the PSLRA (employeur).

Time limits

ThePSLRB Regulations have new provisions regarding time limits.

As indicated in the Grievance Procedure Guidelines, a grievance may be rejected at a higher level of the applicable grievance process for the reason that a time limit in the PSLRB Regulations for filing and processing a grievance has not been met only if the grievance was rejected at the lower level for that reason (PSLRB Regulations s. 63).

Timeliness issues can be raised at the adjudication level if (PSLRB Regulations s.95):

The grievance was rejected on the grounds that the time limit had not been met at the level at which the time limit was not met and at all subsequent levels of the departmental grievance process;

The time limit for referring the grievance to adjudication prescribed in the PSLRB Regulations or provided for in a collective agreement has not been met;

AND

An objection, in writing, is made to the Executive Director of the PSLRB no later than 30 days after being provided with a copy of the reference to adjudication.

Canadian Human Rights Commission (CHRC)

When a grievance (individual, group or policy) has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must notify the Canadian Human Rights Commission of that issue (PSLRA ss. 210(1), 217(1) and 222(1)). The Canadian Human Rights Commission can make submissions at adjudication on that issue (PSLRA ss. 210(2), 217(2), 222(2) and PSLRB Regulations s. 92(1)).

Responsibilities

Departments and agencies

With respect to grievances for which departments and agencies are a party:
1. Departments and agencies are responsible for:
  - Consulting with the Employer Representation Group when a grievance is referred to adjudication;
  - Transmitting replies in the grievance procedure to the Public Service Labour Relations Board (PSLRB);
  - Discussing the grievance with the bargaining agent;
  - Convening meetings with TBS Legal Services counsel and other subject matter experts to determine the employer's position and to prepare for adjudication;
  - Determining the responsible party's position on the grievance;
  - Preparing and signing settlement documents;
  - Consulting with TB Legal Services and the Employer Representation Group, TBS, to determine whether to challenge an adjudicator's decision before the courts.
  NOTE: while the accountability for these types of grievances rests solely with deputy heads, departments and agencies may request the Employer Representation Group, TBS, act as its agent in these matters.
2. The Employer Representation Group, TBS, is responsible for:
  - Providing advice to departments and agencies to help ensure government-wide consistency and coherence;
With respect to grievances for which TBS is a party:
1. Departments and agencies are responsible for:
  - Providing copies of the grievance, of all replies given at each of the levels of the grievance procedure and of all pertinent documents pertaining to the grievance filed;
  - Attending all meetings convened by the Employer Representation Group to discuss the merits of the grievance referred, and obtaining all further information and documents deemed necessary;
  - Making available at adjudication hearings all necessary experts and witnesses, including a labour relations representative from the department;
  - Implementing any decision of an adjudicator or the terms of any settlement.
2. Employer Representation Group, TBS, is responsible for:
  - Transmitting replies in the grievance procedure to the Public Service Labour Relations Board (PSLRB);
  - Providing information on hearings to departments and agencies;
  - Discussing the grievance with the bargaining agent;
  - Convening meetings with departments or agencies, counsel from TBS Legal Services, TB negotiators, and other subject matter experts to determine the employer's position and to prepare for adjudication;
  - Determining the responsible party's position on the grievance;
  - Paying travel and other expenses of TB Legal Services lawyers;
  - Preparing settlement documents;
  - Consulting with TB Legal Services and the department or agency to determine whether to challenge an adjudicator's decision before the courts.

Legal Services, TBS

For all grievances referred to adjudication, TBS Legal Services is responsible for:

Preparing and presenting the employer's case at adjudication;
Providing advice to the Employer Representation Group, TBS and to departments and agencies on adjudication cases and in the consideration of any challenge before the courts

Annex 1 provides a detailed description of how an adjudication file is processed. Annex 2 describes the role of the Employer Representation (ER) Officer and/or the departmental Labour Relations Officer in the case analysis and management.

References

Public Service Labour Relations Act

Public Service Labour Relations Board Regulations and Rules of Procedure

Treasury Board Guidelines on the Grievance Procedure

Collective agreements

Departmental grievance procedure

Departmental codes of discipline

Informal Conflict Management System Directive and Resource Guide

Values and ethics code for the Public Service

Cancellation / Replacement

These guidelines cancel and replace chapter 5 of the Treasury Board Manual dated October 4, 1994.

Enquiries

Enquiries should be directed to:

Employer Representation Group
Labour Relations Sector
Treasury Board Secretariat

Forms

Reference to Adjudication for Which the Deputy Head is a Party

Reference to Adjudication for Which Treasury Board is a Party

Annex 1

Processing an adjudication file

The following describes the steps involved in processing an adjudication file. The process is the same regardless of whether it is TBS or a department or agency that is responsible for the file.

Initial assessment:	Upon receipt of a reference to adjudication from the PSLRB, the responsible party conducts a quick review of the file. Time limits objections must be flagged at this stage. If a timeliness objection is to be raised, it must be made, in writing, to the Executive Director of the PLSRB, no later than 30 days after receiving notice of the reference to adjudication.
Request for extension:	Bargaining agents may request an extension of time to refer a matter to adjudication. In such cases, the responsible party reviews the request, determines whether or not it is in agreement of an extension, and advises the bargaining agent of its decision.
Database entry:	Pertinent details of the grievance are logged into a tracking system.
Initial discussions with Departments / Agencies:	The responsible party has initial discussions with the Employer Representation Group, TBS, as a centre of expertise, and/or the department or agency, as the case may be, to determine which course of action will be taken (expedited adjudication, mediation, settlement, or full hearing). The responsible party then informs the PSLRB of the position, all within the response deadlines outlined in the PSLRB Regulations.
Information package:	The responsible party prepares an information package, which includes copies of the grievance, the grievance replies at all levels of the grievance procedure, the letter of discipline, termination or demotion, if applicable. The copies are then distributed to: the PSLRB, TBS Legal Services, and the Employer Representation Group, TBS.
Tentative adjudication hearing schedule:	The responsible party coordinates with departments and/or TBS Legal Services regarding possible changes to hearing dates due to witness availability, case status, etc. TBS Legal Services then advises the PSLRB of any desired amendments.
Final adjudication hearing schedule:	The responsible party verifies that the requested amendments are reflected in the final hearing schedule
Travel:	When applicable, the Employer Representation Group, TBS funds the lawyers' travel expenses and other related costs, even in cases where the department is the responsible party.
Decisions:	The PSLRB sends the responsible party a copy of adjudicator decisions as they are released.
Settlements:	In cases where a settlement is reached between the parties, the bargaining agent advises the PSLRB of such. The PSLRB confirms the withdrawal of the grievance by way of a letter to the parties.
Closing of file:	The grievance is considered officially closed once the PSLRB has informed the responsible party that the case is closed.

Annex 2

Case analysis and management

The following describes the duties of the responsible Officer in the case analysis and management of a grievance referred to adjudication.

The Employer Representation Group, TBS, can be consulted at any time during this process.

Review file: grievance and grievance replies, case chronology, briefing notes, etc.

Assessment of the merits, and consideration of potential preliminary objections relating to: timeliness, appropriate recourse, jurisdiction, etc.

Research and interpret jurisprudence: PSLRB, Federal Court, Supreme Court, etc.

Assess and weigh all mitigating and aggravating factors of the case (particular nuances, strengths, weaknesses, precedence setting, etc.)

Coordinate meetings with department or agency and TBS Legal Services to discuss the employer's position on the grievance

Determine the employer's position on the grievance, plan and ensure the proper preparation of the case for the hearing

In cooperation with the department or agency and TBS Legal Services Counsel: identify, obtain and analyze all further information or documents deemed necessary for the hearing

When applicable, consult with other related TBS subject matter experts (ex: Work Force Adjustment, TBS Negotiator, Pay Administration, Human Rights, etc.) or other central agencies (i.e. PSC, PSHRMAC, etc.)

Communicate with bargaining agent representatives with respect to the grievance. (i.e. discuss case, reassess chosen course of action, the desired corrective action, negotiate potential terms of settlement, etc.)

If applicable, prepare agreed statement of facts in cooperation with bargaining agent

If applicable, participate and assist in Legal Services' witness preparation efforts

If applicable, and in cooperation with TBS Legal Services: advise departments/agencies on the arranging and serving of subpoenas. For cases handled by departments/agencies, in cooperation with TBS Legal Services, arrange and serve subpoenas.

Prepare and/or sign settlement documents

Review adjudicator's decision, and, in consultation with department/agency and/or Employer Representation Group, TBS, as the case may be, and with TBS Legal Services determine whether the employer will challenge an adjudicator's decision before the courts

Expedited Adjudication: prepare and present case (chronology, agreed statement of facts in consultation with the bargaining agent, evidence to be submitted, research jurisprudence, case arguments supporting management's decision, etc.). Employer Representation Officers, from the Employer Representation Group, TBS, can also coach departmental/agency labour relations officers, should they wish to present the case themselves.