Research Paper Number
Collective Bargaining; grievance; industrial relations; labour relations; public sector
For nearly half a century, the Government of Canada has been administering a grievance system widely-criticized for its complexity and ineffectiveness. This criticism is due, in no small part, to the government’s unique and untenable role — that of both employer and administrative decision-maker. The Public Service Labour Relations Act (PSLRA) establishes this role and effectively confers an unparalleled level of authority upon management to dispose of employee-centred grievances. Likewise, it triggers management’s obligation to attend to grievances fairly and in accordance with the principles of natural justice. However, because the grievance system derives from the private sector — a system thriving on collaboration, flexibility, and informality — the government’s obligations have somehow been misplaced over the years, at least in practice. Thus, the current system has the effect of robbing employees of workplace participation and industrial democracy, while simultaneously providing the illusion of a democratic and rights-based forum in which to resolve conflict. The paper first examines the structure, values, and goals of the private sector grievance procedure. Drawing from these values and goals, the paper then evaluates the unique role of the Government of Canada in the administration of its grievance procedure under the PSLRA. The author argues that although it is desirous to administer the procedure with a great deal flexibility and collegiality, because of the government’s dual role — as management and administrative decision-maker — it is impossible to do so. The paper then examines the government’s obligations to administer its grievance procedure in a manner congruent to the principles of natural justice and procedural fairness. In examining these principles, the paper turns to Canada’s quasi-constitutional statute, as well as the common law in order to inform the author's analysis. The author argues that because of the government’s dual role it is inherently biased and should be disqualified from taking decisions unilaterally. In the final two parts, the paper examines the “residual problems,” offering three alternatives to current model. All three alternatives offer conflict resolution through a procedurally fair process.
LoPatriello, Grant, "Oppression, Suppression, and Injustice: A Critical Evaluation of the Grievance Procedure in the Federal Public Service" (2012). Comparative Research in Law & Political Economy. Research Paper No. 37/2012.