ARTICLE 38
DISPUTE RESOLUTION PROCESS
38.00 General Principles
(a) Recognition
The Board and NASA will work together to foster a collegial and productive workplace.
Working together requires a commitment to frequent and open communications and joint
problem-solving on matters affecting the Collective Agreement and/or the Union-Management
relationship.
The purpose of the dispute resolution process is to resolve problems, complaints and
grievances, between NASA and the Board, in a timely and effective fashion, and to maintain
harmonious working relations.
Both parties recognize their collective duties and responsibilities in these matters.
(b) Disclosure
The parties shall disclose all information/documentation concerning the difference at
the earliest possible opportunity.
(c) Employee's Right to Representation
An Employee's right to representation by NASA is recognized as identified in this
article, and shall not be bypassed in this dispute resolution process.
An Employee may choose to waive the 'right to representation' and to having a
representative present at any meeting. The waiver shall be in writing and signed by the
Employee. NASA and the Board agree to the waiver format as identified in Appendix P.
Employee Relations shall keep copies of any waiver form on file. An employee may revoke,
in writing, this waiver at anytime in the Dispute Resolution Process.
(d) Discrimination and Harassment Resolution
In matters primarily alleging discrimination and/or harassment, the University of
Alberta Policy on Discrimination and Harassment will apply. Failing satisfactory
resolution through that Policy's guidelines, the employee may initiate a grievance at Step
2 [38.03(e)] of the Dispute Resolution Procedure. If there is a dispute as to the
appropriate route for resolution, the parties shall meet to resolve it.
(N.B. See Appendix D, Interim Procedure - Article 38A -
Dispute Resolution Process)
(Explanatory note: GFC
44 is the Policy on Discrimination and Harassment at the U of A -- This
note does NOT appear in the Original Collective Agreement.)
38.01 Problem Solving Procedure
When problems arise they will be addressed in a timely fashion, to restore a harmonious
workplace. Employee(s) who have a problem shall first advise the immediate supervisor of
the existence of the problem. The employee and the immediate supervisor shall make every
possible effort to problem-solve the matter by informal discussion. The supervisor will
communicate a decision within five (5) working days of presentation of the problem.
Failing satisfactory resolution, the employee may request facilitation under 38.02,
Complaint Procedure. [If the problem is not satisfactorily resolved, an employee must file
a complaint (i.e., 38.02) within ten (10) days of the occurrence of the time the employee
should reasonably have become aware of the action or matter giving rise to the
difference.]
38.02 Complaint Procedure
The employee(s) shall present the complaint/difference in writing (the written
complaint document is without prejudice to the formal grievance procedure) to his/her
supervisor's supervisor or designee, stating the nature of the complaint/difference and
the remedy sought. Such a complaint/difference shall be raised within ten (10) days of the
occurrence of the time the employee should reasonably have become aware of the action or
matter-giving rise to the difference. The employee's supervisor's supervisor or designee
shall facilitate resolution of the complaint/difference at a meeting(s) involving the
employee and the supervisor. The employee(s) may be accompanied by a Workplace Rep to
assist the employee(s) in the presentation of the complaint/difference. The parties shall
attempt to resolve the complaint/difference through the process of consultation. Nothing
in this process precludes consulting with Human Resource Services or NASA on any matter.
Representatives from NASA staff or Human Resource Services staff will not attend any
Clause 38.02 meeting without mutual agreement of the parties.
Failing resolution at the above meeting, the employee's supervisor's supervisor (or
designee) shall render a response in writing to all parties involved in the facilitation
step within twenty (20) days of receipt of the written complaint/difference. Failing
satisfactory resolution at the complaint procedure stage, the employee together with NASA
may formalize the difference in a formal written grievance [38.03(d)].
For the purposes of the Complaint Procedure, the supervisor's supervisor's designee
shall be at least an equivalent level (or higher) individual, who has the authority to
resolve the complaint.
38.03 Grievance Procedure
(a) Definition of Grievance Types
(i) Individual Grievance
An individual grievance shall be defined as any difference arising out of the
interpretation, application, operation, administration, or alleged violation of the
Collective Agreement, and including any dispute as to whether the difference is
arbitrable.
Where the immediate supervisor and the Department Head are one and the same, the
employee shall present his/her problem in writing to the Department Head, who shall deal
with the matter in accordance with 38.02.
If the individual grievance is discipline or termination related (e.g., dismissal,
layoff, recall), such grievance shall be initiated under 38.03(e), Step 2 of the Grievance
Procedure and as such bypasses the early dispute resolution steps. Failing settlement of a
discipline or termination grievance, it shall proceed under 38.05(b).
(ii) Group Grievance
A group grievance shall be defined as any difference arising out of the interpretation,
application, operation, administration, or alleged violation of the Collective Agreement,
and including any dispute as to whether the difference is arbitrable, concerning two (2)
or more employees in the same Department.
(iii) Policy Grievance
A policy grievance shall be defined as any difference arising out of the
interpretation, application, operation, administration, or any contravention or alleged
contravention of this Agreement, and affecting either party and/or more than one employee
in more than one department.
(b) Grievance Application
It is the intent of the parties that only one grievance type be dealt with on a
particular matter and that said grievance be grieved under the appropriate defined
grievance type. However, circumstances may arise where one or more individual grievances
may more appropriately be addressed as a group or policy grievance, or vice-versa. The
parties shall attempt to reach mutual agreement on the appropriate means of processing
such grievances.
Where a group or policy grievance is subsequently initiated, all related individual
grievances may be placed in abeyance pending the final resolution of the group or policy
grievance.
(c) Written Grievance Information
A formal written grievance shall include the following information:
(i) The date of the grievance;
(ii) The nature, type and details of the grievance;
(iii) where applicable, the name(s) of the grievor(s);
(iv) the remedy sought;
(v) the article, paragraph or paragraph(s) of the Agreement allegedly violated or the
alleged occurrence said to have caused such grievance;
(vi) Signature(s) of the employee(s) and the designated official of NASA.
(d) Step 1 Grievance
Failing settlement of the complaint, the employee(s) together with NASA may formalize
the grievance in a formal written grievance, within five (5) days of receipt of the above
written response from the supervisor's supervisor. NASA shall submit the grievance to the
Department Head (or the next level of supervision if the supervisor's supervisor is the
Department Head). The Department Head (or designee) shall meet with the employee(s), the
designated official of NASA (or designee) and/or the Workplace Rep, the appropriate
representatives from the employee(s)' Department, and shall attempt to resolve the
employee's grievance. A representative of Human Resource Services will attend any such
meeting to assist in the facilitation of the resolution of the grievance. After thorough
investigation, the Department Head (or designee) shall provide a written response to the
employee(s), the supervisors, NASA and Human Resource Services within fifteen (15) days of
receipt of the formal grievance.
For the purposes of Step l, the Department Head's designee shall be an administrative
level representative (e.g., Chair, Manager), who has not been previously involved in the
issue(s) giving rise to the grievance.
(e) Step 2 Grievance
Failing settlement at Step 1 (or failing satisfactory resolution through the University
of Alberta Policy on Harassment and Discrimination), NASA after full discussion with the
employee may, within ten (10) days of receipt of the Step 1 response (or notification of
failure to resolve satisfactorily the complaint through the University of Alberta Policy
on Harassment and Discrimination), submit the grievance to the AVP(HRS) with a copy to the
Director, Employee Relations & Employment Services, at Step 2 of the Grievance
Procedure. The AVP(HRS), (or designee), shall convene a meeting within fifteen (15) days
for the employee(s) and parties to present relevant information which would enable the
AVP(HRS), or designee, to resolve the matter. The AVP(HRS), or designee, shall provide a
written response within fifteen (15) days of the meeting.
For the purposes of Step 2, the designee shall be a senior administrative level
representative (e.g., Vice-President, Associate Vice-President, Dean, Associate Dean,
Director), who has not been previously involved in the issue(s) giving rise to the
grievance.
(f) Step 3 - Submission to Dispute Resolution
The grievance may be referred, by NASA after full discussion with the employee(s), to
Step 3 of the Grievance Procedure (38.05) within ten (10) days of the receipt of the
written response from the AVP(HRS), or designee.
38.04 Resolution of a Policy Grievance
The aggrieved party shall submit a grievance, in writing, to the other party, signed by
the Designated Official of NASA, or the AVP(HRS), or designee, as the case may be.
(a) Problem Solving Procedure
When problems arise they will be addressed in a timely fashion, to restore an
harmonious workplace. The party receiving the written policy grievance shall, in
consultation with the Director, Employee Relations & Employment Services (or designee)
and the Manager of NASA (or designee) within fifteen (15) days of receipt, meet with the
appropriate parties in an attempt to resolve the matter. The party receiving the grievance
shall reply in writing within ten (10) days of said meeting. Such policy grievance shall
be submitted within twenty (20) days after the occurrence of the matter that is the
subject of the grievance.
(b) Step 2 Grievance
If the aggrieved party is not satisfied that its grievance has been satisfactorily
resolved by the party receiving the grievance it shall, within ten (10) days of receipt of
the response to the grievance, refer the matter to the AVP(HRS), or designee, or the
designated official of NASA, as the case may be, to resolve the matter. The AVP(HRS), or
designee, or the designated official of NASA, as the case may be, shall meet with the
parties, conduct an investigation and provide a written response within thirty (30) days
of receipt of the aggrieved party's advice to proceed to Step 2.
For the purposes of Step 2, the Board's designee shall be a senior administrative
representative who has not been previously involved in the issues giving rise to the
grievance.
(c) Step 3 - Submission to Dispute Resolution
The grievance may be referred to Step 3 of the Grievance Procedure (38.05(b)) within
fifteen (15) days of receipt of the written response from the AVP(HRS), or designee.
38.05 Dispute Resolution Procedure - Step 3
The parties mutually agree that all matters not resolved under 38.03 and 38.04 shall be
referred to Step 3 for resolution under the following dispute resolution paths:
(a) Path A - Individual and Group Grievances
Mediation
All individual or group grievances, except termination related grievances (e.g.,
dismissal, layoff, recall) and discrimination and/or harassment grievances, shall be
referred to a mediation/arbitration process unless the parties (i.e., NASA and the Board)
mutually agree to a different alternative dispute resolution path (e.g., sole arbitrator,
panel arbitration).
The parties shall mutually agree to a single person to act as a mediator/arbitrator in
the first instance to assist in the resolution of the dispute. Failing mutual agreement,
the parties shall select the mediator/arbitrator by use of the random roster procedure
outlined below.
The mediator/arbitrator shall assist the parties in mediating a resolution to the
grievance within thirty (30) days of confirmation of appointment.
The mediator/arbitrator shall be confined to the issue in dispute.
In an effort to achieve resolution, all mediation discussions shall be held on a
without prejudice basis with regard to any subsequent arbitration proceeding. Any
mediation resolution shall be on a without prejudice or with prejudice basis as mutually
agreed to between the Board and NASA.
If the mediator/arbitrator or one of the parties believe that the hearing of the case
by the mediator/arbitrator, acting as an arbitrator, may demonstrably effect or prejudice
their ability to render an effective resolution, then the mediator/arbitrator or the
respective party, as the case may be, may initiate the appointment of an different
mediator/arbitrator, from the roster, to arbitrate the case.
If the mediator/arbitrator is unsuccessful in facilitating resolution of the grievance,
the mediator/arbitrator may render an arbitration decision. When a mediator/arbitrator
cannot assist in mediating a resolution to the grievance, the parties shall agree, in
writing, that the mediator/arbitrator shall act as a single arbitrator to hear the case.
The following conditions shall apply to the powers of the mediator/arbitrator under
this dispute resolution path. The mediator/arbitrator may:
(i) require the production of documents deemed relevant to the grievance;
(ii) examine any witnesses deemed relevant to the grievance; and/or
(iii) assist the parties in mediating a resolution of the grievance.
The parties shall equally share the costs of the fees and expenses of the
mediator/arbitrator.
Arbitration
The mediator/arbitrator shall have the responsibility to:
(i) arbitrate the matter should the mediation process not provide a resolution. Such
arbitration decision shall be final and binding upon the parties and upon any employee
affected by the decision;
(ii) determine his/her own procedure and shall give full opportunity to the parties to
present evidence and to be heard;
(iii) hear and determine the merits of the grievance and shall issue an award in
writing to the parties within thirty (30) days of the conclusion of the hearing;
(iv) provide a brief memorandum of his/her decision (i.e., no longer than 20 pages)
(v) shall not change, amend, alter or modify any of the terms of this Agreement;
(vi) determine whether a particular matter is arbitrable under this Agreement, the
question of jurisdiction shall be determined by the mediator/arbitrator, as the case may
be.
Each party shall bear the expenses and costs of their respective presentation and the
parties shall equally share the expenses of the mediator/arbitrator.
In the event that the mediator/arbitrator deals with a matter relating to disciplinary
action, then the mediator/arbitrator has the authority to reinstate an employee with or
without compensation for wages and/or benefits or make any other award s/he may deem just
and reasonable that would be consistent with the terms of the Agreement.
Representation to Mediator/Arbitrator
The parties mutually agree to the following principles:
(i) the parties shall agree upon the location of the hearings;
(ii) the parties shall each prepare and submit to the mediator/arbitrator a maximum of
a six(6) page summary of the issues in dispute, facts, evidence, merits, and proposed
resolution, if any;
(iii) the parties may make oral submissions to a maximum of one(1) hour;
(iv) the parties may call witnesses to testify before the Mediator/Arbitrator;
(v) the parties will make every effort not to rely upon legal/procedural objections and
the parties agree to make limited use of labour law jurisprudence/authorities during oral
submissions, although neither party is precluded from presenting any issue that it feels
warrants review/consideration by the Mediator/Arbitrator;
(vi) the parties agree to restrict the use of the legal representatives by utilizing
in-house NASA staff or Human Resource Services employees, as the case may be, in the
presentation of the case; and
(vii) the parties will make every effort to expedite the scheduling of the hearing of
each case.
Selection of the Mediator/Arbitrator
The parties mutually agree to the following procedure for selection of the
Mediator/Arbitrator:
(i) to an approved roster of mediators/arbitrators that shall be reviewed by the
parties annually;
(ii) that selection of the mediator/arbitrator, from the roster, for any particular
case shall be random unless otherwise mutually agreed upon; and
(iii) the parties agree that the role of the mediator/arbitrator is to attempt to
resolve the difference/grievance or, if necessary, provide a decision; the
mediator/arbitrator should not seek a compromise unless such compromise is warranted.
(b) Path B - Policy and Individual Termination Grievances
All policy, individual termination related grievances and discrimination and/or
harassment grievances shall be referred to an arbitration process unless the parties
(i.e., NASA and the Board) mutually agree to a different dispute resolution path (e.g.,
mediation/arbitration - 38.05(a)).
If the Board or NASA request that a matter be submitted to arbitration, it shall make
such request in writing addressed to the other party and at the same time state their
nominee. Within fifteen (15) days thereafter, the other party shall nominate a nominee,
provided however, that if such party fails to nominate a nominee as herein required, the
Labour Relations Board for the Province of Alberta shall have power to effect such
appointment upon application thereto by the party invoking the arbitration procedure. The
two nominees so nominated shall attempt to select by agreement a Chair of the Board of
Arbitration within fifteen (15) days. If they are unable to agree upon such a Chair,
either may notify his/her principals that they require appointment of the Chair by random
selection from the approved roster.
However, the parties hereto may select one (1) person to act as a sole arbitrator to
whom any such grievance may be submitted for arbitration and such person shall have the
same powers and be subject to the same restriction as a board of arbitration appointed
under this Agreement.
No person may be appointed as an arbitrator who has been involved in an attempt to
negotiate or settle the grievance.
The Board of Arbitration shall not be authorized to make any decision inconsistent with
the provision of this Agreement, nor to alter, modify, add to or amend any part of this
Agreement. The jurisdiction of the Board of Arbitration shall be confined to the issue in
dispute. The decision shall be unanimous or one reached by a majority of the members of
the Board of Arbitration; provided, however, that if there is no majority decision of the
Board of Arbitration then the decision of the Chair shall constitute the final binding
decision of the board.
If any dispute arises between the parties as to whether a particular matter is
adjudicable under this Article, the question of jurisdiction shall be determined by the
Board of Arbitration or sole arbitrator as the case may be.
In the even that a Board of Arbitration deals with a matter relating to termination,
then the board has the authority to reinstate an employee with or without compensation for
wages and any other benefits lost, or to make any other award it may deem just and
reasonable which would be consistent with the terms of the Agreement.
Each of the parties hereto will bear the expense of their nominee and the parties will
jointly bear expense, if any, of the Chair of the Board of Arbitration.
The party initiating arbitration shall be responsible for informing any third party
likely to be adversely affected:
(1) of the time and place of the sitting of the Board of Arbitration;
(ii) of the matter to be placed before the Board; and
(iii) of the right of that third party to be present and represented.
The initiating party shall provide a copy of said notice(s) to the party responding to
the grievance.
38.06 Grievance Replies
All grievances shall have replies in writing stating reasons with copies to the
employee(s), NASA, affected supervisors and/or Department Head as the case may be, and
Human Resource Services.
38.07 Time Limits
Any of the aforementioned time limits may be extended or placed in abeyance upon mutual
agreement in writing of the parties. All of the aforementioned time limits referred to in
this procedure shall be exclusive of Saturdays, Sundays, paid holidays or official
University-wide days off.
In the event that the initiating party fails to comply with the time limits herein, the
grievance shall be deemed to be at an end.
Notwithstanding any of the provisions in this Article, the initiating party may
discontinue the grievance at any stage, in writing, and, therefore, such shall be deemed
wholly at an end.
38.08 Designated Official of NASA
For the purpose of this article, NASA shall annually notify Employee Relations of the
name of the individual who is the "designated official of NASA" and shall notify
Employee Relations as and when amended.
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