Parliamentary Employment and Staff Relations Act (R.S.C., 1985, c. 33 (2nd Supp.))

Adjudication of Grievances

Reference to Adjudication

Marginal note:Reference of grievance to adjudication

• 63 (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

  • (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

  • (b) disciplinary action against the employee resulting in suspension or a financial penalty,

  • (c) the termination of employment of the employee, other than rejection on probation in respect of an initial appointment,

  • (d) demotion of the employee,

  • (e) where the employee has been denied an appointment, the employer’s evaluation of the skill, fitness and ability of the employee with respect to the employee’s qualification for the appointment,

  • (f) subject to subsection 5(3), the employer’s classification of the employee, or

  • (g) the contravention by the employer of any applicable provision of regulations made under subsection 117(1) of the Accessible Canada Act, if the employee has suffered physical or psychological harm, property damage or economic loss as a result of — or has otherwise been adversely affected by — the contravention,

  and the grievance has not been dealt with to the satisfaction of the employee, the employee may refer the grievance to adjudication.

• Marginal note:Approval of bargaining agent

  (2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies signifies in prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

• Marginal note:Commencement of certain grievance adjudication

  (3) A grievance with respect to a matter referred to in paragraph (1)(f) shall not be adjudicated under this Part unless the circumstances that cause the grievance are in existence after the day that is one year after this Part comes into force.

Marginal note:Notice to Accessibility Commissioner

• 63.1 (1) When a grievance has been referred to adjudication and a party to the grievance raises an issue involving the contravention of any provision of regulations made under subsection 117(1) of the Accessible Canada Act, that party must, in accordance with the regulations, give notice of the issue to the Accessibility Commissioner, as defined in section 2 of that Act.

• Marginal note:Submissions of Accessibility Commissioner

  (2) If the Accessibility Commissioner is notified of an issue under subsection (1), he or she may make submissions during the adjudication with respect to that issue.

Appointment of Adjudicators

Marginal note:Members to adjudicate

64 The Board shall assign such members as may be required to hear and adjudicate on grievances referred to adjudication under this Part.

Establishment of a Board of Adjudication

Marginal note:Composition of board of adjudication

• 65 (1) Where a grievance is referred to a board of adjudication, the board shall be composed of three persons, namely,

  • (a) a member of the Board, who shall be the chairperson; and

  • (b) two other persons, one nominated by each party.

• Marginal note:Ineligible to be a member

  (2) A person is not eligible to be a member of the board of adjudication established under subsection (1) if the person has any direct interest in or connection with the grievance, its handling or its disposition.

Duty of the Board

Marginal note:Notice to specify whether adjudicator named, etc.

• 66 (1) Where a grievance has been referred to adjudication, the aggrieved employee shall, in the manner prescribed, give notice to the Board and shall specify in the notice whether an adjudicator is named in any applicable collective agreement or, if no such adjudicator is named, whether the employee requests the establishment of a board of adjudication.

• Marginal note:Action to be taken by Board

  (2) Where a grievance has been referred to adjudication and the aggrieved employee has notified the Board as required by subsection (1), the Board shall, in the manner and within the time prescribed,

  • (a) where the grievance is one arising out of a collective agreement and an adjudicator is named therein, refer the matter to the adjudicator so named;

  • (b) where the establishment of a board of adjudication has been requested by the aggrieved employee and no objection thereto has been made by the employer affected within such time as may be prescribed, establish the board and refer the matter to it; and

  • (c) in any other case, refer the matter to an adjudicator selected by it.

• Marginal note:Adjudication of certain matters

  (3) Notwithstanding section 64 and subsections (1) and (2) of this section, where a grievance respecting a matter referred to in paragraph 63(1)(d), (e) or (f) is referred to adjudication, the adjudication shall be by a single adjudicator selected by

  • (a) the employee and employer concerned; or

  • (b) the Chairperson, where the employer and employee are unable to agree on the selection of an adjudicator and either party makes a written request to the Chairperson to select an adjudicator.

• Marginal note:Adjudicator re certain matters

  (4) A person selected to adjudicate a grievance respecting a matter referred to in paragraph 63(1)(d), (e) or (f)

  • (a) shall not be a member of the Board but has, for the purposes of the adjudication, all the powers, rights and privileges of the Board other than the power to make regulations under section 12 of this Act or section 36 of the Federal Public Sector Labour Relations and Employment Board Act; and

  • (b) shall not have any direct interest in or in connection with the grievance, its handling or its disposition.

• Marginal note:Adjudication by members

  (5) Despite section 65 and subsections (1) and (2), only members of the Board may adjudicate grievances respecting a matter referred to in paragraph 63(1)(g).

Marginal note:Powers of adjudicator

66.1 An adjudicator has, for the purposes of the adjudication of a grievance respecting a matter referred to in any of paragraphs 63(1)(a) to (c) and (g) that is referred to adjudication, the powers that the Board has under paragraph 15(d) of this Act and paragraphs 20(a) and (d) to (f) of the Federal Public Sector Labour Relations and Employment Board Act, in relation to the hearing or determination of a proceeding before it.

Jurisdiction of Adjudicator

Marginal note:Compliance with procedures

• 67 (1) Subject to any regulation made by the Board under paragraph 71(1)(d), no grievance shall be referred to adjudication and no adjudicator shall hear or render a decision on a grievance until all procedures established for the presenting of the grievance up to and including the final level in the grievance process have been complied with.

• Marginal note:Decision requiring amendment

  (2) No adjudicator shall, in respect of any grievance, render any decision thereon the effect of which would be to require the amendment of a collective agreement or an arbitral award.

• Marginal note:Binding effect

  (3) Where a grievance has been presented up to and including the final level in the grievance process and is not one that under section 63 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Part and no further action under this Part may be taken thereon.

Marginal note:Accessible Canada Act

67.1 An adjudicator may, in relation to the adjudication of a grievance respecting a matter referred to in paragraph 63(1)(g),

• (a) interpret and apply the Accessible Canada Act; and

• (b) give relief in accordance with section 102 of that Act.

Decision of Adjudicator

Marginal note:Hearing of grievance

• 68 (1) Where a grievance is referred to adjudication, the adjudicator shall give both parties to the grievance an opportunity of being heard.

• Marginal note:Decision on grievance

  (2) After considering the grievance, the adjudicator shall render a decision thereon and

  • (a) send a copy thereof to each party, to the representative of each party and to the bargaining agent, if any, for the bargaining unit to which the employee whose grievance it is belongs; and

  • (b) deposit a copy of the decision with the Board.

• Marginal note:Decision of board of adjudication

  (3) In the case of a board of adjudication, a decision of the majority of the members on a grievance is a decision of the board thereon, and the decision shall be signed by the chairperson of the board.

• Marginal note:Implementation of decision by employer

  (4) Where a decision on any grievance referred to adjudication requires any action by or on the part of the employer affected thereby, the employer shall take that action.

• Marginal note:Action to be taken by employee or bargaining agent

  (5) Where a decision on any grievance requires any action by or on the part of an employee or a bargaining agent or both of them, the employee or bargaining agent, or both, as the case may be, shall take that action.

• Marginal note:Powers of Board with respect to decision on grievance

  (6) The Board may, in accordance with section 13, take such action as is contemplated by that section to give effect to the decision of an adjudicator on a grievance but shall not inquire into the basis or substance of the decision.

Expenses of Adjudication

Marginal note:Where adjudicator named in collective agreement

• 69 (1) Where an adjudicator is named in a collective agreement, the method of determining the adjudicator’s remuneration and of defraying such expenses as the adjudicator may incur shall be as established in the collective agreement naming the adjudicator, but if the agreement does not specify the method, the named adjudicator’s remuneration and expenses shall be borne equally by the parties.

• Marginal note:If no adjudicator named in agreement

  (2) If a grievance is referred to adjudication but is not referred to an adjudicator named in a collective agreement, and the employee, whose grievance it is, is represented in the adjudication proceedings by the bargaining agent for the bargaining unit to which the employee belongs, the bargaining agent, subject to subsection (3), is liable to pay and shall remit to the Board any part of the costs of the adjudication that may be determined by the Chairperson with the Board’s approval.

• Marginal note:Exception

  (3) Where a grievance is referred to a board of adjudication, the remuneration and expenses of the nominee of each party shall be borne by the parties respectively.

• Marginal note:Recovery

  (4) Any amount that by subsection (2) or (3) is payable to the Board by a bargaining agent may be recovered as a debt due to the Crown by the bargaining agent which shall, for the purposes of this subsection, be deemed to be a person.

• Marginal note:Adjudicator re certain grievances

  (5) Where a grievance respecting a matter referred to in paragraph 63(1)(d), (e) or (f) is referred to adjudication, the adjudicator’s remuneration and expenses shall be borne equally by the parties.

Enforcement of Obligations of Employer and Employee Organizations

Marginal note:Reference by employer or bargaining agent to Board

• 70 (1) Where an employer and a bargaining agent have executed a collective agreement or are bound by an arbitral award and the employer or the bargaining agent seeks to enforce an obligation that is alleged to arise out of the agreement or award, and the obligation, if any, is not one the enforcement of which may be the subject of a grievance of an employee in the bargaining unit to which the collective agreement or arbitral award applies, either the employer or the bargaining agent may, in the prescribed manner, refer the matter to the Board.

• Marginal note:Board shall hear and determine

  (2) Where a matter is referred to the Board pursuant to subsection (1), the Board shall hear and determine whether there is an obligation as alleged and whether, if there is, there has been a failure to observe or to carry out the obligation.

• Marginal note:Hearing and determination of reference

  (3) The Board shall hear and determine any matter referred to it pursuant to subsection (1) as though the matter were a grievance, and subsection 67(2) and sections 68 and 69 apply to the hearing and determination of that matter.

Regulations respecting Grievances

Marginal note:Regulations re procedures for presentation of grievances

• 71 (1) The Board may make regulations in relation to the procedure for the presenting of grievances, including regulations respecting

  • (a) the manner and form of presenting a grievance;

  • (b) the maximum number of levels of officers of the employer to whom grievances may be presented;

  • (c) the time within which a grievance may be presented up to any level in the grievance process including the final level;

  • (d) the circumstances in which any level below the final level in the grievance process may be eliminated; and

  • (e) in any case of doubt, the circumstances in which any occurrence or matter may be said to constitute a grievance.

• Marginal note:Application of regulations

  (2) Any regulations made by the Board under subsection (1) in relation to the procedure for the presentation of grievances shall not apply in respect of employees included in a bargaining unit for which a bargaining agent has been certified by the Board, to the extent that such regulations are inconsistent with any provisions contained in a collective agreement entered into by the bargaining agent and the employer applicable to those employees.

• Marginal note:Regulations re adjudication of grievances

  (3) The Board may make regulations in relation to the adjudication of grievances, including regulations respecting

  • (a) the manner in which and the time within which a grievance may be referred to adjudication after it has been presented up to and including the final level in the grievance process;

  • (a.1) the manner of giving notice of an issue to the Accessibility Commissioner under section 63.1;

  • (b) the manner in which and the time within which boards of adjudication are to be established;

  • (c) the procedure to be followed by adjudicators; and

  • (d) the form of decisions rendered by adjudicators.

• Marginal note:Employer to designate persons at final or any level

  (4) For the purposes of any provision of this Part respecting grievances, an employer shall designate the person whose decision on a grievance constitutes the final or any level in the grievance process and the employer shall, in any case of doubt, by notice in writing advise any person wishing to present a grievance, or the Board, of the person whose decision thereon constitutes the final or any level in the process.