HR | Atlantic - Positive Change at Work

Can a Complainant grieve against their employer if they don’t agree with the employer’s response?

Aug 09, 2012

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Whether an employee can grieve an employer decision or action depends upon the particular language in the applicable collective agreement and the language in relevant legislation.   Some agreements have very broad definitions of grievances as being ‘any dispute between the parties regarding the interpretation or application of the collective agreement or any statute relevant to determining terms and conditions of employment’.  In other cases, matters that can be grieved are more limited: ‘disputes regarding disciplinary awards or financial penalties’.

Similarly, the grievability of the outcome of a harassment investigation is also dependent upon these same considerations.  Consider the case of Zabia Chamberlain: the Public Service Relations Board  ruled that an employee could not grieve simply because she was unhappy with the employer’s response to a harassment complaint.  The matter had to fit within the types of matters that were ‘grievable.  In Zabia Chamberlain v. Attorney General of Canada, Chamberlain was a Federal government employee.  She complained of harassment by her supervisor, and her employer, the Attorney General of Canada investigated.  It concluded that there had been harassment and offered Chamberlain some corrective measures .  She refused to go back to work until the employer took actions she felt were appropriate.  She filed a grievance under the Public Service Labour Relations Act and also made four complaints under the Canada Labour Code.  S  The employer raised a preliminary objection arguing that the adjudicator was without jurisdiction to hear the grievance or complaints becasue  the grievance was not in response to a disciplinary action and therefore did not fall within the parameters of s. 209(1)(b) of the Public Service Labour Relations Act.  Furthermore, the employer argued that  no evidence was adduced of a reprisal (dismissal, suspension, lay off or demotion) as envisioned by s. 147 of the Canada Labour Code, the adjudicator was without jurisdiction to hear the complaints.

The Board dismissed the grievance but allowed the complaints were to continue.  The Board did not have jurisdiction over the grievance because it did not allege a disciplinary action or a financial penalty.  The Board has limited jurisdiction to hear the complaints and could only entertain the complaints as they related to allegations of reprisals to Chamberlain’s exercise of her rights under the Canada Labour Code that took place in the 90 days before the first complaint was filed.  The hearing was to continue on the allegations of reprisal that occurred less than 90 days before the filing of the first complaint on April 23, 2009.  The Federal C.A.  dismissed Chamberlain’s application for judicial review, and the Supreme Court of Canada refused leave to appeal.

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