ARTICLE 39 - Grievance and Arbitration Procedure

39:01 The parties agree that they will use their best efforts to encourage informal, amicable and prompt settlement of complaints and grievances arising from the interpretation, application, administration or alleged violation(s) of this Agreement. However, the parties recognize that one of the cornerstones of collective bargaining is a viable grievance procedure allowing for a prompt and fair hearing of matters arising from the interpretation, application, administration or alleged violation(s) of this Agreement. Except as otherwise provided in this Agreement, the procedures outlined below shall be the sole method for the resolution of complaints or grievances arising from the interpretation, application, administration or alleged violation(s) of this Agreement.

39:02 A representative of the Faculty Association shall have the right to be present at all steps of the grievance procedure and to represent the grievor at all steps. Notwithstanding the preceding, however, only the Association and the University shall have the right to proceed with grievances beyond step 1.

39:03 The parties shall be bound by and shall promptly implement all decisions arrived at under the procedures described in this Article 39.

39:04 All communications required by this Article 39 to be in writing shall be delivered personally or by registered mail.

Types of Grievances

39:05 (a) Individual Grievance - a grievance by a member, who is solely affected, that the terms and conditions of this Agreement have been violated, misapplied or misinterpreted. The grievance may be initiated by the member or by the Association.

(b) Group Grievance - a grievance by more than four (4) members who are affected, that the terms and conditions of this Agreement have been violated, misapplied or misinterpreted. A group grievance shall involve more than four (4) members and may be initiated by the Association at step 2 or 3. The members involved in the grievance shall be listed on the grievance form.

(c) Policy Grievance - a grievance arising directly between the Association and the University concerning the interpretation, application, administration or violation of the provisions of this Agreement which has implications generally for Association members. The grievance may, but need not relate to an actual dispute involving an individual member or group of members. Nothing in the Article shall be deemed to preclude the Association from initiating, as a Policy grievance, a grievance which is also the subject of an individual grievance or a group grievance, nor shall the initiation of a Policy grievance preclude such individual or group grievances which are approved by the Association. The Association shall have the right to bring grievances to the University at step 3.

(d) University Grievance - the University shall have the right to bring grievance(s) against groups of members commencing at step 3 and against an individual member commencing at step 1.

The Grievance Procedure

39:06 Any complaint may be presented orally and discussed informally between the complainant and the complainant’s Head; for a librarian member, with an Associate University Librarian or Law Librarian, as applicable. The complainant may request a representative of the Faculty Association to be present at this meeting.

The grievance procedure shall be as follows:

STEP I

When a member wishes to initiate a grievance, the member shall notify the Faculty Association within fifteen (15) working days of the occurrence of the incident or the date when grounds for a grievance were known or should reasonably have been known by the grievor; or if an informal meeting has been held, within fifteen (15) working days of the informal meeting. Once the Faculty Association has been notified, a Step 1 meeting shall be held within twenty (20) working days to discuss the grievance, attended by the member, the Head (or, for a librarian member, an Associate University Librarian or the Law Librarian, as applicable), and a Grievance Officer appointed by the Faculty Association. In the event the grievance is not satisfactorily resolved at Step 1 the grievor shall within ten (10) working days indicate in writing to the Faculty Association that the grievor wishes to continue to Step 2. If the Faculty Association decides to continue to Step 2, a written grievance shall be forwarded to the Dean, University or Law Librarian as applicable.

STEP 2

The Dean, (University or Law Librarian, as applicable) shall meet with the grievor and the grievor’s Association representative no later than ten (10) working days after receipt of the written grievance. Every reasonable attempt shall be made to resolve the grievance. In the event a settlement is reached at the meeting, it shall be immediately put to writing and signed by the Dean (or University or Law Librarian, as applicable) and the Faculty Association. In the event a settlement is not reached, the Dean shall, within five (5) working days of the meeting, indicate the status of the grievance in a memo to the Association’s Vice-President, Grievance. The Faculty Association may forward a copy of the grievance to the Provost within fifteen (15) working days of the said meeting.

STEP 3

The Provost shall meet with the President of the Association, or the President of the Association’s delegate, within ten (10) working days of receipt of the grievance. Every effort shall be made to resolve the grievance. The Provost shall provide a written response stating the disposition of the grievance within seven (7) working days of such meeting to the Faculty Association, with a copy to the grievor.

39:07 The identity of the member(s) who file individual and group grievances shall be kept confidential by the Provost, Dean(s), Heads, the Faculty Association and by those to whom it is necessary to communicate this information for the purposes of resolving said grievances.

39:08 Any recommendation for the resolution of a grievance by a Head or other member of the bargaining unit shall have no force and effect unless and until ratified in writing by the Dean(s), the University Librarian or the Law Librarian as the case may be.

39:09 The University undertakes to supply to the President of the Association a current list of delegates authorized to act for the Dean(s), the University Librarian, the Law Librarian or the Provost.

39:10 Should the grievance against the University involve a decision at Step 2, such grievance shall be commenced at Step 3; should the grievance against the University involve a decision at Step 1, such grievance shall be commenced at Step 2; grievance(s) contemplated by clauses 13:07 and 13:21 of this Agreement shall proceed directly to arbitration.

39:11 Should a grievance arise directly between the University and the Association, such grievance shall be commenced at Step 3.

39:12 The Association shall have the right to bring grievance(s) on behalf of groups of members commencing at Step 3; the University shall have the right to bring grievance(s) against groups of members commencing at Step 3 and against an individual member commencing at Step 1; nothing in this clause 39:12 shall preclude informal discussion prior to the lodging of the written grievance at Step 3.

Exclusions from the Grievance Procedure

39:13 The grievance and arbitration procedures under this Article shall not be available for resolution of disputes exclusively concerned with:

(a) dismissal for just cause under Article 29 of this Agreement;

(b) promotion, tenure and renewal of contract except as expressly provided in clauses 13:07 and 13:21 of this Agreement;

Arbitration

39:14 (a) Except for the grievance(s) referred to specifically in clause 39:13, where a grievance is not resolved to the satisfaction of both parties at Step 3, the Association or the University may, within fourteen (14) working days of receipt of the report of the Provost, serve notice that it intends to proceed to arbitration by a single arbitrator as hereinafter provided for in this clause 39:14.

(b) The parties hereby authorize and appoint the following persons to serve as a panel of nine (9) arbitrators on a rotating basis for the duration of this Agreement:

1.   Bill Kaplan
2.   Gail Misra
3.   Kenneth Swan
4.   Sheri Price
5.   Richard MacDowell
6.   Louisa Davie
7.   Jasbir Parmar
8.   Brian Langille
9.   Kim Bernhardt

Each of the foregoing arbitrators shall serve singly in the order listed. If the arbitrator is not available within a reasonable period of time, but in any event not to exceed one (1) month, the next arbitrator in order shall be selected and so on until one of the arbitrators is available. For the next arbitration thereafter the arbitrator who is listed after the arbitrator last selected shall be next in line. By mutual consent, however, any one may be selected out of turn. If in any case none of the arbitrators is available within a reasonable time, but in any event not to exceed one (1) month, another arbitrator may be selected by mutual consent. If such selection has not been made within seven (7) days, either party may request the Minister of Labour for Ontario to make the appointment.

(c) The arbitrator shall hear and determine the grievance and shall issue a decision and the decision is final and binding upon the parties and upon any member affected by it. The arbitrator shall have jurisdiction to award such remedy or remedies as the arbitrator may deem to be appropriate except the award of costs against either party, but shall not have jurisdiction to amend or add to any of the provisions of this Agreement, to substitute any new provisions in lieu thereof, or to give any decision inconsistent with the terms of this Agreement. However, the arbitrator shall not be barred from hearing a grievance and rendering an award on the basis of a technical irregularity.

(d) The appropriate arbitration provision of the Labour Relations Act of Ontario shall be deemed to apply to the time for taking any step in this clause 39:14.

(e) Each of the parties to the arbitration shall share the fees and expenses of the arbitrator equally.

Arbitration Board

39:15 (a) In the event that a complaint arising from denial of tenure on the grounds set out in clause 13:07 is not resolved, the Association may within fourteen (14) days of notice of the recommendation of the President to the complainant or within fourteen (14) days of the date the complainant becomes aware of the failure of the President to make a recommendation serve written notice to the University that it intends to proceed to arbitration and such notice shall contain the name of its appointee to the arbitration board. The respective appointees shall, within a further fourteen (14) days, select a third appointee to the arbitration board who shall act as Chairperson and who shall be chosen from among the following:

1. Bill Kaplan
2. Gail Misra
3. Kenneth Swan
4. Sheri Price
5. Richard MacDowell
6. Louisa Davie
7. Jasbir Parmar
8. Brian Langille
9. Kim Bernhardt

Each of the foregoing persons shall serve as Chairperson of the arbitration board in the order listed. If the Chairperson is not available within a reasonable period of time, but in any event not to exceed one (1) month, the next person in order shall be selected and so on until one (1) of the persons is available. For the next arbitration thereafter the person who is listed after the Chairperson last selected shall be next in line. By mutual consent, however, any one may be selected out of turn. If in any case none of the persons is available within a reasonable time, but in any event not to exceed one (1) month, another person may be selected to serve as Chairperson by mutual consent. If such selection has not been made within fourteen (14) days, either party may request the Minister of Labour for Ontario to make the appointment.

(b) The arbitration board shall hear and determine the grievance and shall issue a decision and the decision is final
and binding upon the parties and upon any member affected by it. The decision of a majority is the decision of the arbitration board, but if there is no majority the decision of the Chairperson governs. The arbitration board shall have jurisdiction to award such remedy or remedies as it may deem to be appropriate, except the award of costs to either party, but shall not have jurisdiction to amend or add to any of the provisions of this Agreement, to substitute any new provisions in lieu thereof, or to give any decision inconsistent with the terms of this Agreement. However, the arbitration board shall not be barred from hearing a grievance and rendering an award on the basis of a technical irregularity.

(c) The appropriate arbitration provision of the Labour Relations Act of Ontario shall be deemed to apply to the time for taking any step in this clause 39:15.

(d) Each of the parties to the arbitration shall pay the fees and expenses of their or its nominee and shall share the fees and expenses of the Chairperson equally.

39:16 Notwithstanding anything in this Article 39 to the contrary, the University and the Association may agree at any time in respect of any grievance which is submitted to arbitration to have the grievance arbitrated either by a single arbitrator in which case clause 39:14 applies or by an arbitration board in which case clause 39:15 applies.

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