Grievance (labour)

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A grievance is a formal complaint that is raised by an employee towards an employer within the workplace. There are many reasons as to why a grievance can be raised, and also many ways to go about dealing with such a scenario. Reasons for filing a grievance in the workplace can be as a result of, but not limited to, a breach of the terms and conditions of an employment contract, raises and promotions, or lack thereof, as well as harassment and employment discrimination. [1]

Contents

According to Sean C. Doyle, in his work titled, The Grievance Procedure: The Heart of the Collective Agreement, the grievance process takes on certain secondary roles in countries such as Canada, United States and the United Kingdom that can include, but are not limited to, "a mechanism for the extension of the relationship between the parties, a union tactic to pressure management for strategic purposes, a diagnostic device to uncover underlying problems in the workplace, a mechanism for individual employees or union officials to challenge management over a range of working conditions, or even a forum for the communication of information". [2]

A grievance between an employee and employer can be dealt with either informally or formally, and sometimes both approaches are taken in search of a resolution. In the informal approach, an employee can informally bring forth a concern promptly to his or her employer. Here a discussion or similar between the two parties can result in a mutually agreed upon resolution. In the case that this step fails or is skipped altogether, a grievance can be raised formally, where formal meetings and options for appeals become available. [3]

Workplaces that have trade union representation often file a grievance with an employer on behalf of an individual employees request. According to the Union of Northern Workers, "Grievances are filed by the union on behalf of its members. Most of the grievances filed by unions are filed on behalf of individual employees (individual grievances) or on behalf of a group of employees (group grievances). A third type of grievance is the policy grievance which deals with issues that affect all employees". [4]

Relationship to Labour Law

In the majority of cases, a grievance in a workplace is filed due to a breach of labour law. Though labour law can be different from country to country, there is a general understanding of this particular laws meaning and relationship to employees and employers. According to Peter Ackers and Adrian Wilkinson in their work titled, Understanding Work and Employment: Industrial Relations in Transition, labour law involved items can include, "the contract of employment, regulatory legislation (such as health and safety measures), the conduct of industrial disputes, and questions of trade union government". [5] Going further, these authors also note the concern of labour law with three relationships in particular, that include, "the relationship between the employer and the worker (a relationship rooted in contract - the contract of employment); the relationship between the employer and the trade union (a relationship rooted in tort - interference with trade, business or employment by unlawful means); and the relationship between the trade union and the worker (a relationship rooted in contract - the contract of membership)". [5]

Though all three relationships are very different, they are all highly connected, especially in a situation where a grievance is filed by an employee or a union.

Benefits of a Grievance

Above all else, a grievance is a procedure that allows for peace of mind, since knowing that there is a procedure in place to challenge questionable decisions that are made by others in the workplace is available. A grievance allows for an opportunity at conflict management with ideals such as fairness and equity at its forefront. [2] Employees are able to have their say at all levels of management, with the opportunity to escalate to an independent arbitrator if necessary. [2]

While there are benefits for employees, management benefits from the presence of a grievance process as well. As Sean C. Doyle states in his work titled, The Grievance Procedure: The Heart of the Collective Agreement, this is due to the fact that, "the process represents an excellent means for achieving consistency in policy formulation and application and can ensure compliance with corporate policy by middle management and supervisors since their decisions are subject to the grievance procedure and will be reviewed by their superiors". [2] To be more specific, the grievance process often encourages the workplace contract to be quite specific, therefore it will encompass several events that can occur on a day-to-day basis. This creates clear expectations on both the part of an employee and employer, with the hope of a quick, but fair resolution. [2]

As for the union, a grievance procedure can act as a way to nurture trust and loyalty between employee and the union. Since a grievance is usually a process that is supported by both employee and employer, there is always an understanding that this will be the route taken for conflict resolution within the workplace. When action must be taken, the union can play a significant role in the grievance process, and for this reason, it is important that they achieve a fair settlement for their clients, who are the employees, in order to gain further support and in some cases, re-election for company union representation. [2]

Disadvantages of a Grievance

Though the grievance process does provide for a structured and often fair procedure to dealing with conflicts within the workplace, there are also certain disadvantages present. In some cases, employees and employers alike can see the inclusion of a third-party arbitrator as a way in which they lose specific rights or control over the situation. [2] Another more obvious disadvantage is the use of time and money, which are both valuable resources to an organization. Often, a grievance does take a substantial amount of time to be completed, and therefore there is plenty of time used, while costs incurred during the investigation, and in particular through the inclusion of a third-party arbitrator can quickly add up. Another common disadvantage amongst employee and employer has to do with the notion of expectation. For instance, one party may prefer a quick resolution, while another may prefer to take their time and conduct a thorough investigation. [2]

Ultimately a grievance process takes the attention of both the employee and employer away from their main roles in a workplace and shifts them elsewhere, while tensions between both parties can also form, resulting in future toxic environments or feelings. [2]

International Approaches

Grievance Process in Canada and the United States

Grievance procedures can differ slightly from province to province, or state to state, though the process itself is quite similar whether it occurs in Canada or the United States.

Most grievance cases feature a three to four step process. In a workplace that features a union structure, grievances begin with an employee bringing forth a particular issue or issues to their direct management source (usually in writing) within a specified period following the particular infraction. The issue is then in the hands of management who now has a specific period to respond personally or escalate the issue further to a higher authority. At this point, and sometimes even prior, a union representative enters the situation (if such structure exists) on behalf of the employee. If the situation cannot be resolved in an informal manner, or the preliminary stages of a formal grievance, the case is usually brought to an independent arbitrator. Since this is in many cases a last step in the process, the decision of an arbitrator is usually seen as final. A step that must be mutually agreed upon and one that is not always usual in the process is presenting the grievance to a mediator, who can assist the two or more sides solve their disagreement without having to go to arbitration. Mediation tends to cost both sides far less in terms of finances and time as opposed to the arbitration process. [6]

An important piece of the grievance process in Canada and the United States revolves around timelines that must be met to ensure that a grievance remains active. Time limits are not always set, but they are in most cases, and this is why this is an important factor to highlight. In Canada for instance, a grievance must be filed within twenty five days of the occurrence being reported to a secondary party. [7] This time limit excludes weekends and holidays that would usually be paid. An employer is required to respond to a grievance within ten days of its initial receipt. In many cases, if these set time limits are not adhered to, a grievance can be nullified. It is acceptable for an employee and employer to mutually agree upon extending certain deadlines past the above noted days allowable, though it is recommended to do so in writing. [7]

Grievance Process in the United Kingdom

The process of a grievance in the United Kingdom is not significantly different from the process used in Canada and the United States, however, the process will be outlined below.

A grievance filed by an employer or employee should be submitted in writing. The next step involves a meeting between employee and employer. It is a statutory right for an employee to be able to bring a companion, but not just anyone, there are stipulations here; the companion must be a member of the union representing the employee, co-worker or similar. If an employer or employee is unsatisfied following the meeting, there will be an opportunity to appeal the decision. In some cases, an appeal is held in-house by an impartial individual who may be employed by the same organization but had no previous involvement or bias in the case. [8]

Major Grievance Cases in Canada

Pate Estate v. Harvey (Township)

If not done correctly, workplace dismissal and the way in which it is handled can result in a grievance being filed. This specific case highlights a case of dismissal gone wrong. In 2009, the Ontario Superior Court of Justice rewarded a wrongfully dismissed employee named John Gordon Pate $550,000 in damages for his March 1999 dismissal. [9]

Mr. Pate was Chief Building Official of the Corporation of the Township of Galway-Cavendish from 1989 until December 31, 1998. [9] The Township of Galway-Cavendish had dismissed Mr. Pate based on an issue with his handling of building permit fees. The Township went one step further and asked the OPP to look into the matter and potentially lay criminal charges. This request by the township to the provincial police was well-received and led to a four-day long criminal trial. This trial ended in the dismissal of the former employees original charges. [10]

Following this particular ordeal, Mr. Pate in turn sued the Township for wrongful dismissal as well as malicious prosecution. He won on both charges. In November 2013, the Ontario Court of Appeal lowered the amount of damages awarded to Mr. Pate to $450,000. [10]

Wilson v. Solis Mexican Foods Inc.

This specific case involves an employee named Patricia Wilson and her employer Solis Mexican Foods. According to the specific case subsection on the Cassels Brock Lawyers website, "This was the first Ontario court decision to award damages under the Human Rights Code." [11] She was an assistant controller with the company as of January 2010, until the date of termination. A letter dated May 19, 2011, advised Ms. Wilson that she would be terminated due to the sale of a sector of the business that made several existing positions within the company superfluous. [12]

Prior to termination, Ms. Wilson, through her doctor had requested time off of work, dated March 7, 2011, in order to heal a recurring back issue. On March 28, 2011, once again through her doctor, Ms. Wilson informed her employer that she would be able to return to work on modified duties that included 4-hour work days beginning the week of April 4, with the promise of full 8-hour days commencing by April 18. The employer found this to be unacceptable and requested further information, which was promptly provided. One final twist in the lead up to the dismissal includes an unexpected letter from Ms. Wilson's doctor, which was dated April 28, 2011, simply stating that her client would need to be off of work until June 15, 2011. The case transcripts do not provide any further communication between this last request and the time of termination. [12]

The specific case subsection on the Cassels Brock Lawyers website outlines the decision of this case when it states that, "The Ontario Superior Court awarded $20,000 to the employee after finding that her ongoing back problems and related requests for accommodation were a factor in the employer’s decision to terminate, despite the employer’s argument that her termination was part of a corporate reorganization." [11]

Related Research Articles

Labour laws are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, employer, and union.

Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The interests of the employees are commonly presented by representatives of a trade union to which the employees belong. A collective agreement reached by these negotiations functions as a labour contract between an employer and one or more unions, and typically establishes terms regarding wage scales, working hours, training, health and safety, overtime, grievance mechanisms, and rights to participate in workplace or company affairs. Such agreements can also include 'productivity bargaining' in which workers agree to changes to working practices in return for higher pay or greater job security.

Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any other entity, pays the other, the employee, in return for carrying out assigned work. Employees work in return for wages, which can be paid on the basis of an hourly rate, by piecework or an annual salary, depending on the type of work an employee does, the prevailing conditions of the sector and the bargaining power between the parties. Employees in some sectors may receive gratuities, bonus payments or stock options. In some types of employment, employees may receive benefits in addition to payment. Benefits may include health insurance, housing, disability insurance. Employment is typically governed by employment laws, organisation or legal contracts.

<span class="mw-page-title-main">United Kingdom labour law</span> Labour rights in the UK

United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK can rely upon a minimum set of employment rights, which are found in Acts of Parliament, Regulations, common law and equity. This includes the right to a minimum wage of £9.50 for over-23-year-olds from April 2022 under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995.

<span class="mw-page-title-main">Dismissal (employment)</span> Involuntary termination of employment

Dismissal is the termination of employment by an employer against the will of the employee. Though such a decision can be made by an employer for a variety of reasons, ranging from an economic downturn to performance-related problems on the part of the employee, being fired has a strong stigma in some cultures.

An employment contract or contract of employment is a kind of contract used in labour law to attribute rights and responsibilities between parties to a bargain. The contract is between an "employee" and an "employer". It has arisen out of the old master-servant law, used before the 20th century. Employment contracts relies on the concept of authority, in which the employee agrees to accept the authority of the employer and in exchange, the employer agrees to pay the employee a stated wage.

The duty of fair representation is incumbent upon Canadian and U.S. labor unions that are the exclusive bargaining representative of workers in a particular group. It is the obligation to represent all employees fairly, in good faith, and without discrimination.

<i>Canada Labour Code</i>

The Canada Labour Code is an Act of the Parliament of Canada to consolidate certain statutes respecting labour. The objective of the Code is to facilitate production by controlling strikes & lockouts, occupational safety and health, and some employment standards.

Just cause is a common standard in employment law, as a form of job security. When a person is terminated for just cause, it means that they have been terminated for misconduct, or another sufficient reason. A person terminated for just cause is generally not entitled to notice severance, nor unemployment benefits depending on local laws.

<span class="mw-page-title-main">WorkChoices</span> Australian industrial relations law

WorkChoices was the name given to changes made to the federal industrial relations laws in Australia by the Howard government in 2005, being amendments to the Workplace Relations Act 1996 by the Workplace Relations Amendment Act 2005, sometimes referred to as the Workplace Relations Amendment Act 2005, that came into effect on 27 March 2006.

A severance package is pay and benefits that employees may be entitled to receive when they leave employment at a company unwillfully. In addition to their remaining regular pay, it may include some of the following:

<span class="mw-page-title-main">Employment Relations Act 2000</span> Statute of the Parliament of New Zealand

The New Zealand Employment Relations Act 2000 is a statute of the Parliament of New Zealand. It was substantially amended by the Employment Relations Amendment Act 2001 and by the ERAA 2004.

In labour law, unfair dismissal is an act of employment termination made without good reason or contrary to the country's specific legislation.

<span class="mw-page-title-main">Whistleblower protection in the United States</span>

A whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public. The Whistleblower Protection Act was made into federal law in the United States in 1989.

An employment contract in English law is a specific kind of contract whereby one person performs work under the direction of another. The two main features of a contract is that work is exchanged for a wage, and that one party stands in a relationship of relative dependence, or inequality of bargaining power. On this basis, statute, and to some extent the common law, requires that compulsory rights are enforceable against the employer.

<i>Dryden v Greater Glasgow Health Board</i>

Dryden v Greater Glasgow Health Board [1992] IRLR 469 is a UK labour law case concerning the contract of employment. It held that a variation of company workplace customs, which are incorporated into individual contracts of employment can take place after a proper consultation without breaching employees' contracts.

South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.

In law, wrongful dismissal, also called wrongful termination or wrongful discharge, is a situation in which an employee's contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law. Laws governing wrongful dismissal vary according to the terms of the employment contract, as well as under the laws and public policies of the jurisdiction.

Labour law regulates the legal relationship in Bulgaria between individual workers and employees as well as between coalitions and representative bodies.

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), is a US labor law case, concerning arbitration with collective agreements for labor rights.

References

  1. ↑ "Dealing with grievances at work - Citizens Advice". www.citizensadvice.org.uk. Retrieved February 18, 2017.
  2. 1 2 3 4 5 6 7 8 9 Doyle, Sean (1999). The Grievance Procedure: The Heart of the Collective Agreement (PDF). Kingston, Ontario: Industrial Relations Centre. ISBN   0-88886-521-X.
  3. ↑ "Raising a grievance at work | Acas advice and guidance". February 14, 2008.{{cite journal}}: Cite journal requires |journal= (help)
  4. ↑ "Grievances and Arbitrations | UNW". www.unw.ca. Retrieved February 18, 2017.
  5. 1 2 Ackers, Peter; Wilkinson, Adrian (2003). Understanding Work and Employment: Industrial Relations in Transition. Oxford University Press. p. 138.
  6. ↑ "Grievance Procedures Law and Legal Definition". definitions.uslegal.com. Retrieved February 18, 2017.
  7. 1 2 "Standard procedure, individual grievances » CEIU - Canada Employment and Immigration Union". CEIU - Canada Employment and Immigration Union. Retrieved February 18, 2017.
  8. ↑ Disciplinary and Grievance Procedures (PDF). Norwich, England: The Stationery Office. 2009. ISBN   978-0-11-706728-8.
  9. 1 2 "Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669 (CanLII)". CanLII. Retrieved February 18, 2017.
  10. 1 2 "Cassels Brock : Top 10 Employment and Labour Law Cases in 2013". www.casselsbrock.com. Retrieved February 18, 2017.
  11. 1 2 "4. Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799". Cassels Brock Lawyers. Retrieved January 2, 2017.
  12. 1 2 "Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (CanLII)". CanLII. Retrieved November 25, 2016.
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