Resolution of rights disputes

• Author: Christopher Rootham
• Pages: 269-311

 

RESOLUTION OF

RIGHTS DISPUTES

A. INTRODUCTION

One of the eccentricities of federa l public service labour law is the met hod of

resolution of rights disputes. Under most labour relations statutes, almost every

possible subject of dispute may be grieved, a nd then referred to binding thi rd-

party arbit ration. e Canada Labour Code, for one, requires the pa rties to a

collective agreement to refer “al l dierences between the pa rties ... concerning

[the collecti ve agreement’s] interpretation, applic ation, administ ration or alleged

contravent ion.” is provision — coupled with a long line of jurisprudence i ndi-

cating that al most all workplace disputes ar ise under the collective ag reement

— means that arbitrators have jurisd iction over just about every dispute that

arises in t he workplace.

In the federal public s ervice, however, this is not the case . e Public Service

Labour Relations Act limits t he matters that are capable of being gr ieved, and

then places further limits on what grievances can be referred to adjudication.

is chapter largely concerns those l imits.

B. INFORMAL CONFLICT MANAGEMENT SYSTEM

Section  of the PSLR A requires any deput y head in the core public ad ministra-

tion, subject to any policies or di rectives issued by the employer, to establish a n

informal conic t management system. Deputy heads must establi sh this system

in consultation with bargai ning agents representing employees in the portion of

Canada Labour Code,R.S.C. , c. L-, s. ().

 See, for exa mple,See, for example, Weber v. Ontar io Hydro, []  S.C.R. .

Public Serv ice Labour Relations Act , S.C. , c. , s.  [PSLRA].

269

270           

the public servic e for which they are the deputy head. Sepa rate employers are not

required to establi sh informal conict management systems.

e PSLRA does not de ne what an “infor mal conict ma nagement system”

is supposed to be. However, the Treasury Board Directive on Inform al Conict

Management Systems denes an informal con ict management system as follows:

“An informal conict management system (ICMS) is a system for deal ing with

conict, w hich incorporates a lternative dispute resolut ion methods into exi sting

rights-based structures to form a multi-option conict management system.”



An ICMS is supposed to be more than just an alternative dispute resolution

mechanism, however. As one commentator has put it:

At rst blush, most readers will assume that [section ] simply means that

department s must introduce “Alternative Dispute Resolut ion” (“ADR”) at the

front door of grieva nce and workplace complaint processe s, and will conclude

that their depa rtments already mee t the requirements.

In f ac t, s.   g oe s we ll b ey ond ADR .  e te rm ino log y “ con i ct m an age men t

system” was chosen adv isedly, because only a conict ma nagement system ap-

proach will re sult in the desired new cu lture. Systems involve the developme nt,

support and use of behaviours that prevent unnecessa rily destruc tive conict

(“conict competence”) a nd the proactive management of the causes of con ict.

By specify ing a systems approach in s.  — and t he involvement of employee

representatives i n its development — Canada has ta ken world leadership in the

evolution of organiz ational conict man agement.

e Treasury Board direc tive also lists ten requirements of an ICMS, as fol-

lows:

. Consultation with all stakeholders: Involving st akeholders, at an early

stage, is fu ndamental to a successfu l implementation. Key stakeholders

include, but are not limited to, bargai ning agents, managers, human re-

sources advisors, a nd legal services.

. Use of system is voluntary: Use of the system, at any sta ge of conict, is

strictly voluntary.

. Flexible: e system should al low for the prevention and/or resolution

of conict at all st ages, and must take into account the need s of our

diverse work force. Use of the ICMS neve r precludes part icipants from

 PublicServicesHumanResourcesManagementAgencyofCanada,Public Serv ices Human Resources Ma nagement Agency of Canada, Informal Conic t

Management Resource Guide, in Directive on Inform al Conict Management System s

( December ), online: Publ ic Services Human R esources Management Agency of

Canada: w ww.hrma-agrh.gc.ca /hrmm-mgrh/icms/icms _e.asp at .

 JenniferLynch,“eFederalJennifer Lynch, “ e Federal Public Service Modernization Act — State of th e Art In-

novations in Con ict Management” Canadian Government Executive (Februar y, )

at .

271Chapter Nine: Resolution of Rights Disputes

utilizing forma l processes. A participant may switch bet ween the ICMS

and formal process(es) at any time. Subject to any leg islated provisions,

period(s) of time using the ICMS should not count against t he time lim-

its of formal pro cesses.

. Accessible: In addition to the for mal processe s, employees must be

aware of the ICMS in place with in their respective organizat ion. Poten-

tial users of the s ystem should know of its available options for resolvi ng

a dispute, and have easy access to t he system at all times.

. Accompan iment/Repres entation: Partie s participate in ADR pro-

cesses, such as mediat ion, on a voluntary basis and may withdraw at any

point in time. e par ties may be accompanied/represented by a person

(or persons) of their choosing such as their bargain ing agent representa-

tive. However, if the issues in dispute revolve around the i nterpretation

or application of a collective agreement, the ba rgaining agent represen-

tative must be involved. A person (or persons) who accompanies or rep-

resents a party i n an ADR process has the right to speak. Management

representatives should encourage employees to involve their bargaini ng

agent representative in the conic t management process at the earliest

possible stage. ICMS processes a re designed to assist part ies to resolve

the issues themselves, at times with the assistance of third-party neu-

trals. e underly ing principle of the engagement of partie s in ADR

processes is their comm itment to try to res olve a conict in a coopera-

tive and open manner.

. Condentiality: Condentiality is an import ant factor that inuences

the participant s’ trust and condence in the integ rity of the system.

While absolute condentialit y is the goal, it cannot be guaranteed, due

to the provi sions of thePrivacy Act, the Access to Information Act, and

other legis lation. Partic ipants must agree not to use any informat ion

gained when using the ICMS outside of the ICMS.

. Impartial and neutra l: Any person that is actually providing conict

management services, such as med iation, (whether internal or external)

must do so on an “arm’s length” basis. e individual must not be put

in a position i n which he would be requi red to represent or advocate for

any of the potential par ties in a conict and must not have any prefer-

ence for a possible outcome of the process. e part ies in a conict must

agree on any person who wi ll be providing conict ma nagement ser-

vices.

Privacy Act, R .S. , c. P-.

Access to Informat ion Act, R.S., , c. A-.