Chapter 3: The Grievance

A grievance is a violation of the employee’s rights on the job – whether under the collective agreement or under legislation. Not all complaints are grievances. They need to clearly violate either the contract or the law. 

Grievances can be violations of:

• The contract
• The law
• Past practice
• Employees’ rights

Contract violation. If the grievance is a clear-cut violation of the contract, it will be easy to prove. If it involves an interpretation of the contract, it might be a little harder, so knowing jurisprudence (arbitration decisions) will help.

Violation of a federal or provincial law. Here you will have the option of filing a grievance or going to the appropriate government agency to get redress – or both. Examples include a worker refusing work they consider unsafe, or a worker complaining of racial or sexual harassment by management. In such cases, the steward should go through internal union channels, and a decision may be made to lodge a complaint with the appropriate government agency at the same time. See if your union has incorporated the relevant law in your collective agreement. Some unions specify and define the violation of provincial laws as grievances in their collective agreements.

Violation of a past practice in the workplace. This can be the basis for a grievance, particularly in areas where the contract is silent or unclear. Where a past practice has been violated by management, an employee may have a real grievance. The only relevance of past practice is to clarify (but not to alter) the collective agreement where it is ambiguous or unclear. 

To be considered as a past practice, the circumstances must have been:

• Repeated over an extended period of time; 
• Accepted explicitly or implicitly by both workers and management, e.g. by verbal agreement or in writing, without either side formally objecting; or
• While violating the contract, neither side has demanded that this part of the contract be enforced.

A claim of past practice cannot be relied upon unless the collective agreement contains a specific provision to that effect. One example of this is the following clause: “The rights, benefits, privileges and working conditions which members of the union now enjoy will continue in effect insofar as they are consistent with the terms of this agreement.”

Violation of employees’ rights. Like “past practice”, the union must have a clear-cut, well-documented case. These kinds of grievances arise when management treats workers unfairly or unequally. These grievances are hard to fight and win so the local union should try to ensure that any problems concerning employees’ rights are safeguarded in writing – in the collective agreement.

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The first thing to do is get the facts. Listen to their story. Ask yourself: does it violate the contract? The law? A past practice? Their rights? If the answer is yes, chances are the complaint you have is a legitimate grievance. 

Whether the complaint is a legitimate grievance or not, the employee is concerned enough to come to you with a problem. This concern demands action on your part to clarify or correct the situation. If you answered “no” to whether the problem violated the collective agreement, past practice, a law or the employee’s rights, then you have a complaint rather than a grievance. 

Complaints must be dealt with. If an employee alleges there has been a violation of the collective agreement, explain why it is not. A worker may think they have a grievance because they don’t understand the contract. They may claim that they are entitled to vacation pay, for example, when a careful reading of the contract shows that they haven’t enough service to qualify. 

A grievance is a complaint against management. So, it’s not a grievance if two workers have a personal disagreement. If Jane and Bob can’t agree whether the window should be open or shut, that’s not a grievance. The exception to this rule is harassment.

Benefit of the doubt

If you have a borderline case between complaint and grievance, give the employee the benefit of the doubt. Say you are not sure about it and then ask for help from the Chief Steward or the grievance committee. When you have discussed the matter with them, go back to the member and report on your discussion. It is important to keep the member informed at all times. Don’t go out on a limb promising action when you are not sure. Rash promises often boomerang, labelling the steward unreliable.

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A steward can classify grievances according to where they come from and how they arise. We also classify grievances according to who is affected.
Individual grievance. An individual grievance is a complaint that an action by management has violated the rights of an individual as set out in the collective agreement, law or some unfair practice. 

Examples of this type of grievance include: 

• Discipline
• Demotion
• Harassment
• Classification disputes
• Denial of benefits, etc 

The steward – not the member – files the grievance. When an individual’s rights have been violated and that person refuses to file a grievance, you should file the grievance on behalf of the union – especially if the contract specifically permits it. In this way, you will defend the collective agreement and protect the rights of all employees covered by it. Management’s argument that you cannot file an individual grievance on behalf of the union is false.

Group grievance. A group grievance is a complaint by a group of individuals, for example, a department or a shift, that has been affected the same way and at the same time by an action taken by management. For example, the employer refuses to pay a shift premium to the employees who work an afternoon shift when the contract entitles them to it. (If the grievance is asking for monetary compensation, make sure that all those involved sign the grievance. Arbitrators have been known to “award” the grievance yet only give compensation to those who have signed.)

Policy grievance. A policy grievance is a complaint by the union that an action of management (or its failure or refusal to act) is a violation of the agreement that could affect all who are covered by the agreement. For example, management assigns a steady day-shift employee to work on an off-shift without regard to seniority. The union might grieve in an effort to establish that seniority must be considered in such an assignment, even though the individual involved might have no complaints against the shift change. 

The point is that the outcome or the precedence of the grievance may have a detrimental effect on the local union at some point in the future and the union must change it. Normally you would not deal directly with this type of grievance other than to provide the necessary investigation. Policy grievances are normally filed by the local or national levels.

Union grievance. A union grievance may involve a dispute arising directly between the parties to the collective agreement. For example, the union would grieve on its own behalf if the management failed to deduct union dues as specified by the collective agreement. In these cases, the union grievance is one in which the union considers its rights to have been violated and not just the rights of individuals in the local union.

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Settling grievances is one of the steward’s most important jobs. It might look difficult, but it really isn’t that difficult. You need:

• Common sense
• Courage
• Some rules to follow

Get the facts. When a worker comes to you with a complaint, the first thing to do is to get the facts. (Only then can you decide whether it’s a grievance or not.) Listen to their story patiently, then ask them specific questions. 

Remember the “6 Ws”:
•    Who, What, When, Where, Why and Want

Don’t be satisfied with vague statements like “The supervisor’s picking on me” or “They’re giving us too much work.” Ask the questions that will give you all the necessary information. Sometimes, members assume you know more about what is going on than they do – including the facts of their complaint. 

Get a statement. Once you have gotten the facts, investigate – promptly. Have grievors write down the full story themselves, giving names, dates and places. Advise grievors to use actual quotes in relating things they have heard or were told. The actual words may be important. Have the grievor sign and date the statement. It will be useful for refreshing the memory before any hearing.

Get permission. Remember, if your contract requires that you ask permission of the supervisor to leave your job in order to investigate a grievance, do so! It is your duty to uphold the agreement, but flouting your supervisor’s authority is not going to help you win grievances. 

Get witnesses. Collect statements from all available witnesses, signed and dated. Interview not only those witnesses who support the grievor but also those who don’t. This can help you find out what really happened, and to know what you are up against.  

Write it all up. Once you have completed your investigation, you should make a written record to ensure that key points are not forgotten or distorted when passed from one person to another.  
Be patient. Months may elapse between the events giving rise to a grievance and its final settlement at arbitration. 

Whodunit? Management, most likely. A grievance is like a detective story – you must sift through all the evidence “before you know” who did what. It is very important to treat every investigation and every grievance as if it was going to arbitration. If it ever does, you’ll be prepared!

Even if the matter is not taken to arbitration, a statement of the facts may be useful when preparing future bargaining demands.  

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Who is involved in the grievance? Get their 4-11 (get the checklist here in PDF: [[{“fid”:”663″,”view_mode”:”default”,”fields”:{“format”:”default”},”type”:”media”,”link_text”:”stewardchecklist-one.pdf”,”attributes”:{“class”:”file media-element file-default”}}]]

• Name, contact info, Social Insurance Number
• Work location, department, date of appointment, classification
• Name of supervisor, supervisor’s position and witnesses
• The grievor’s record (including absentee record, production record, disciplinary record and lateness record, age, family status)

Get the facts

• When did the grievance occur? Date and time.
• Where did the grievance occur? Exact location, department, machine, aisle, etc.
• Why is this a grievance? What has been violated? The contract? Past practice? A law? Personal rights?  
• What happened that caused the violation? What is involved? What is management’s contention?

Identify the remedy you want

• What do you want? What needs to happen to correct the injustice? 
• Typically, you want the employer to place the aggrieved in the same position they would have been in had the grievance not occurred
• Ask for full redress

Review your material

• Do you have all the facts? 
• Check the facts with the contract, supplementary agreements, precedents or past practice, policies or department rules and arbitration awards
• Seek out more experienced stewards and local union officers if you need help

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