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Grievances & Complaints

Does being a member of a certified trade union make a difference in the enforcement of my employment rights?

Yes, it does. As Paul Jones of the Canadian Association of University Teachers (CAUT) puts it:

The main differences separating union and non-union associations are not contentious ideological issues such as the wisdom of collective action, the advisability of common terms of employment or the structure of the faculty association. ... Rather, the dividing line is the less dramatic, but critical, area of contractual enforcement.

A collective agreement is a legally enforceable contract and the entire relationship between a unionized faculty and university administration is overseen by a labour board. An administration’s failure, for example, to bargain in good faith or to recognize a unionized faculty association as the representative of faculty can be remedied by the board.

The enforceability of special plans is not as assured. ... Faculty in non-unionized settings have no recourse to labour boards if an administration bargains in bad faith, discriminates against faculty for membership in the association or repudiates the special plan. Equally importantly, non-unionized faculty cannot lawfully withdraw their employment services as a means of encouraging administration flexibility at the negotiating table.

From 'This Is the Law! A Brief History and General Overview of the Legal Framework Governing University Academic Staff,' CAUT Legal Review 1, no. 1 (April 2000).

 

What duties does the union have to represent me?

The first and most basic duty of a union is to represent fairly all members of the bargaining unit. This responsibility is stipulated in the Labour Relations Act: 'A trade union ... shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit' (s. 74).

Accordingly, YUFA must:

  • investigate thoroughly and seriously every problem in the workplace that is brought to its attention,
  • try to resolve each problem brought to its attention, including filing any grievance that has a reasonable chance of success,
  • involve the membership in resolving workplace problems and in bargaining Collective Agreements.

 

What if I have a question about my contractual or other employment rights or suspect they have been breached?

First, inform yourself by reading these FAQs and your Collective Agreement. If you're still concerned, contact YUFA; staff handle many a confidential question and can advise you about the best way to proceed.

Some questions are simply requests for clarification and interpretation of the Collective Agreement, e.g., 'what does the "outside professional activities" clause mean for my consulting business?' and 'what if the Benefits Department can't adequately explain why Great-West Life has denied my benefits claim?'. In response, you may get advice about how to deal with the issue yourself or with YUFA's help.

Your situation may involve a violation of the Collective Agreement or other entitlements. If so, you can ask YUFA to informally discuss the problem with the Employer. Most problems are resolved this way ... but if yours can't be, you may choose to file a written grievance.

 

What is a grievance?

In the legal sense, a grievance is a difference between a union and an employer that can't be resolved informally. Grievances arise from the interpretation, application, administration or an alleged violation of a collective agreement or a statute.

The process for resolving grievances is set out in the Collective Agreement. It involves, at most, four basic steps:

  1. Complaint (informal stage),
  2. Written grievance and Employer written response,
  3. Internal dispute resolution,
  4. Arbitration.

A grievance can be settled at any point by either party.

 

What happens at the stages of the grievance resolution process that precede arbitration?

Complaint (informal) stage

The first way to resolve a grievance is for representatives of the Employer and the employee to discuss it. The Employer is usually represented by a Dean, an Associate Dean, or the Director of Academic Employee Relations. The employee is represented by a YUFA staff person and a Chief Steward.

Written grievance and Employer written response

If the issue isn't resolved to the member's satisfaction, YUFA prepares a written grievance, describing the alleged violation, citing the relevant clauses of the Collective Agreement, and specifying a remedy. It is then sent to the Executive Director of Employee Relations; this is referred to as 'filing a grievance'. The Employer must reply in writing.

Internal dispute resolution

This is a stage that the grievor can use or bypass.

It consists of having the grievance heard by the six-member Dispute Resolution Committee (DRC). Although the Committee as a whole can hear grievances, usually they're heard by a subcommittee of three - an appointee of each party and a jointly-appointed chairperson. 

At the outset, the grievor chooses from two methods of deliberation:

  • In mediation, the Committee attempts to effect a settlement by approaching both parties.
  • In formal deliberation, the Committee receives a detailed statement of the facts and an explanation of why the grievance wasn't resolved in the previous stage. The Committee writes a recommendation for settlement to the Employer, YUFA, and the grievor. Representatives of the Employer and YUFA may then meet to decide whether to accept the recommendation.

 

Who decides which grievances go to arbitration?

This decision is a serious one. According to YUFA's Constitution and By-laws, such decisions are made by the Executive Committee, based on the recommendation of the Chief Stewards and the Grievance Subcommittee, with the agreement of the grievor.

The decision is informed by a written legal opinion from YUFA's outside legal counsel, which assesses the merits of the case. Unfortunately merit, in this instance, has little to do with justice but rather with whether the case is winnable in a legal sense. That is, can YUFA prove that the Employer has violated a particular clause of the Collective Agreement or existing law, leading to substantial harm? 

Further, the legal opinion hypothesizes about the consequences of losing the arbitration. In a worst-case scenario, an arbitrator could determine that a previously-ambiguous clause has a meaning that is detrimental to YUFA.

 

How does arbitration work?

YUFA and the Employer agree upon an arbitrator and a hearing date is set, potentially as much as a year in the future. Arbitration is a quasi-legal proceeding that can consist of one or many days of hearings, which are open to the public. Based on the evidence, testimony, arguments, and current state of law, the arbitrator provides a written ruling - referred to as an award.

 

What are the different kinds of grievances?

There are three kinds:

  • Individual: A violation of work-related rights or entitlements of a member.

  • Group: If the facts and remedy sought are the same, YUFA can grieve on behalf of two or more members.

  • Policy: YUFA can grieve on behalf of all members when the Employer's action or inaction has broad implications for a substantial number of members or the bargaining unit as a whole.

 

Can YUFA only grieve about violations of Collective Agreement clauses?

No, YUFA can grieve about alleged violations of:

  • Provincial statutes, such as the Ontario Human Rights Code, Employment Standards Act, and Occupational Health & Safety Act.
  • Content of appointment letters. YUFA advises new hires to ensure that everything agreed to in discussions with management is included in these letters.

Further, there are some workplace practices that aren't covered in the Collective Agreement, e.g., electronic course evaluations. The Collective Agreement contains an Existing Practices clause that sets forth how management must notify YUFA of changes; if management fails to do so, YUFA can grieve.

 

What are some examples of recent grievances?

  • Collective Agreement violations
    • restructuring, e.g., Atkinson, Faculty of Health,
    • class size increases,
    • legal coverage for members sued for libel after communicating in mass media,
    • T&P procedural irregularities,
    • lack of support for invigilation of deferred exams,
    • recognition of the Collective Agreement in York's Ombudsperson's Terms of Reference,
    • destruction of a significant portion of Fine Arts' Slide Library.
  • Employment-related provincial statutes
    • violation of Section 32 of the Employment Standards Act, which states that an employer cannot pay a man more than a woman for essentially the same work.
  • Letters of appointments
    • incorrect assignment of sabbatical credits,
    • paying a former CLA, newly appointed to the tenure steam, less than the minimum entitlement.
  • Existing practices
    • electronic course evaluations,
    • changes to mortality tables used to calculate pensions.

 

Can I grieve about something another YUFA member does?

Yes; keep in mind that it's the Employer you're grieving against, not your colleague. The Employer is obligated to uphold the Collective Agreement and relevant laws, e.g., by providing a harassment-free workplace, by protecting your copyrights to course materials.

 

Is my Chair a YUFA member?

Yes. Although your Chair / Department Head, Graduate and Undergraduate Program Directors and the like are designated by the Employer to carry out certain administrative functions, these colleagues are indeed YUFA members.

 

What can I do if I've been harassed or discriminated against?

According to York's Centre for Human Rights, in 2005/06, 137 complaints involved faculty members. Disability issues were the most common type of complaint to the Centre.

If you've been harassed or discriminated against, you can use the grievance procedure, file a complaint with the Centre for Human Rights in accordance with Appendix Q, or do both.

You also have a right to file a complaint with the Ontario Human Rights Commission, which usually requires that you first avail yourself of the dispute resolution mechanism in your Collective Agreement.

 

Are there time limits on grieving?

The Collective Agreement stipulates a time limit of 21 days after you knew (or ought reasonably to have known) about an alleged violation, but the parties can agree to extensions.

 

Can I bring a union rep to meetings with my Chair or management, e.g., to discuss a student complaint?

Yes, YUFA recommends that you do so. Regardless, always take notes during such meetings.

 

Can the Employer retaliate against me if I complain or grieve?

No. Your right to grieve is protected by the Labour Relations Act and the Collective Agreement.

 

More info?

Version: July 2007