Resolution of Rights Disputes

• Author: Christopher Rootham
• Pages: 488-549

488

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Resolution of Rights Disputes

A. INTRODUCTION

One of the eccentricities of federal public service labour law is the

method of resolution of rights disputes. Under most labour relations

statutes, almost every possible subject of dispute may be grieved and

then referred to binding third-party arbitration. The Canada Labour

Code, for example, requires the parties to a collective agreement to

refer “all dierences between the parties . . . concerning [the collective

agreement’s] interpretation, application, administration or alleged con-

travention.”1 This provision — coupled with a long line of jurisprudence

indicating that almost all workplace disputes arise under the collective

agreement2 — means that arbitrators have jurisdiction over just about

every dispute that arises in the workplace.

In the federal public service, however, this is not the case. The Fed-

eral Public Sector Labour Relations Act (FPSLRA) limits the matters

that are capable of being grieved and then places further limits on what

grievances can be referred to adjudication. This chapter largely con-

cerns those limits.

1 Canada Labour Code, RSC 1985, c L-2, s 57(1).

2 See, for example, Weber v Ontario Hydro, [1995] 2 SCR 929 [Weber], and

Northern Regional Health Authority v Horrocks, 2021 SCC 42 [Horrocks].

Resolution of Rights Disputes | 489

B. INFORMAL CONFLICT MANAGEMENT SYSTEM

Section 207 of the FPSLRA requires any deputy head in the core pub-

lic administration, subject to any policies or directives issued by the

employer, to establish an informal conf‌lict management system. Deputy

heads must establish this system in consultation with bargaining agents

representing employees in the portion of the public service for which

they are the deputy head. Separate employers are not required to estab-

lish informal conf‌lict management systems.

The FPSLRA does not def‌ine what an “informal conf‌lict manage-

ment system” is supposed to be. However, the Treasury Board’s policy

describing the informal conf‌lict management system describes it as “a

systematic approach to preventing conf‌lict escalation by managing and

resolving conf‌licts in the workplace quickly and constructively.”3

An internal conf‌lict management system is supposed to be more

than just an alternative dispute resolution mechanism, however. As one

commentator has put it:

At f‌irst blush, most readers will assume that [section 207] simply

means that departments must introduce “Alternative Dispute Reso-

lution” (“ADR”) at the front door of grievance and workplace com-

plaint processes, and will conclude that their departments already

meet the requirements.

In fact, s. 207 goes well beyond ADR. The terminology “conf‌lict

management system” was chosen advisedly, because only a conf‌lict

management system approach will result in the desired new culture.

Systems involve the development, support and use of behaviours that

prevent unnecessarily destructive conf‌lict (“conf‌lict competence”) and

the proactive management of the causes of conf‌lict. By specifying a

systems approach in s. 207 — and the involvement of employee repre-

sentatives in its development — Canada has taken world leadership in

the evolution of organizational conf‌lict management.4

3 Government of Canada, “Getting to Know Informal Conf‌lict Management

System (ICMS)” (12 August 2008), online: www.canada.ca/en/government/

publicservice/wellness-inclusion-diversity-public-service/harassment-violence/

informal-conf‌lict-management-system/getting-to-know-informal-conf‌lict-

management-systems-better.html.

4 Jennifer Lynch, “The Federal Public Service Modernization Act — State of the Art

Innovations in Conf‌lict Management,” Canadian Government Executive (Febru-

ary 2004) at 27.

490 | LABOUR AND EMPLOYMENT LAW IN THE FEDERAL PUBLIC SERVICE

Departments and separate agencies in the federal government have

all introduced informal conf‌lict management systems. Their ecacy

remains a matter of some debate, although early reports prepared by

some departments indicated that employees were moderately satisf‌ied

with the results of informal conf‌lict management.5 Finally, most collect-

ive agreements in the federal public administration contain a provision

stating that when an employee and an employer agree to use the informal

conf‌lict management system, this suspends the time limits for f‌iling a

grievance or taking some further step within the grievance process.

C. GRIEVANCES

The FPSLRA provides that almost all disputes between employees and

employers within the federal public administration must be resolved

using the grievance procedure. However, only a subset of grievances is

capable of being referred to adjudication. The bulk of this chapter will

explore these questions: what can be grieved, what need not be grieved

(i.e., which disputes can be addressed in other forums), and what griev-

ances can be adjudicated.

) Matters That May Be Grieved

The right of an employee to grieve a particular issue or dispute is set out

in section 208 of the FPSLRA. Section 208(1) of the FPSLRA sets out

the broad subject matters of a grievance as follows:

208 (1) Subject to subsections (2) to (7), an employee is entitled to

present an individual grievance if he or she feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute or regulation, or of a direction or

other instrument made or issued by the employer, that deals

with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award; or

5 See, for example, Department of Justice, “Informal Conf‌lict Management System

Evaluation Final Report” (May 2010), online (pdf): www.justice.gc.ca/eng/rp-pr/

cp-pm/eval/rep-rap/11/icms-sgice/icms-sgice.pdf, and Agriculture and Agri-Food

Canada, “Evaluation of Informal Conf‌lict Management Services Oered by

AAFC’s Oce of Conf‌lict Resolution” (9June 2009), online (pdf): https://

publications.gc.ca/collections/collection_2010/agr/A22-497-2009-eng.pdf.