Article 12 – Resolution of Disagreements
12 .RESOLUTION OF DISAGREEMENTS
The University and the Association are committed to resolving disagreements informally wherever possible. They also undertake to resolve disagreements expeditiously.
12.1 Definition and Scope
(a) This section of the Framework Agreement provides a method for resolving disagreements concerning
(i) the interpretation of this Agreement, or of any policy affecting members' terms and conditions of employment.* Issues of interpretation raised by the Association or the University will be referred to the President of the University and the President of the Association. If they are unable to agree, the interpretation issue will proceed directly to arbitration.
(ii) the application or alleged violation of this Agreement, or of any policy affecting members' terms and conditions of employment,* or complaints alleging a breach in the duty of fairness in the application of any policy to individual members or complaints from individual members alleging a breach in the duty of fairness in relation to matters not covered by this Agreement or any policy. These disagreements shall be dealt with in accordance with the procedures set out in this section of the Framework Agreement, although they may be varied by mutual consent.
(b) This Section does not apply to decisions covered by appeal mechanisms already contained in University policies. (See Schedule A)
12.2 Step One: Informal Resolution of Disagreements
(a) The parties agree to use every reasonable effort to encourage informal, amicable and prompt settlement of disagreements.
(b) Informal discussions among the persons directly concerned in the matter giving rise to a disagreement, such as a faculty member and a chair and their respective representative(s) or support person(s), must normally commence within ten (10) working days of the date on which the act or omission giving rise to the complaint became known or ought reasonably to have become known to the party or parties affected. Efforts at informal settlement shall not be unreasonably prolonged.
(c) If the informal discussions fail to resolve the disagreement within ten (10) working days of their commencement, a grievance may be filed.
(a) Types of Grievances
(i) An individual grievance is a grievance initiated by a single member. Where two or more individual grievances relate to the same subject matter, any party to these grievances may suggest that they be dealt with together as a common grievance. The common grievance shall name all the members involved and shall be initiated only with the written consent of all named members.
(ii) A group grievance is a grievance initiated by two (2) or more members involved in the same dispute with the University. The group grievance shall name the members involved and shall be initiated only with the written consent of all named members.
iii) An Association grievance is a grievance initiated by the Association which may, but need not, relate to an actual dispute involving an individual member or group of members.
(iv) A University grievance is a grievance initiated by the University against the Association.
(b) Grievance Procedures
A grievance shall be accompanied by any pertinent documentation available at the time, subject to conditions of privacy and confidentiality. At any time during the grievance, the grievor may opt out of the process upon written notice to all parties involved.
Step Two: Problem Solving
Grievances shall be submitted in writing to the administrator immediately above the person whose act or omission is the basis of the complaint or in the case of a University Grievance to the Faculty Association President.
The appropriate administrator shall meet with the parties directly concerned in the matter giving rise to the disagreement and their representatives or support persons no later than five (5) working days after receipt of the written grievance. Every reasonable attempt to resolve the grievance shall be made. If a settlement is reached it shall be committed to writing and signed by the administrator and the Association or the grievor, if not represented by the Association. In the event that the grievor and the administrator cannot resolve the grievance within ten (10) working days, the administrator shall, within five (5) working days after the expiration of this period, forward to the grievor written reasons for denying the grievance, with a summary of the decision, without identifiers, to the Association.
Step Three: Conciliation
If no resolution is reached a copy of the grievance may be forwarded to the Grievance Conciliation Panel by the grievor(s), within ten (10) working days of the termination of step two.
A Grievance Conciliation Panel shall be constituted within thirty (30) working days of the signing of this Agreement and shall consist of eight (8) persons; four (4) appointed by the University and four (4) appointed by The Association. All members of the Panel shall hold an academic, academic/administrative, professor emeritus, laboratory instructor, librarian or archivist position at the University.
Terms of individuals chosen for the Panel shall be three years. Terms of office will be staggered to ensure some continuity of membership. Should a member of the Panel resign or be unable to serve their full term of office, the party which made the appointment shall name a replacement to serve for the remainder of that member's term of office. Should a member's term of office expire prior to the completion of a case in which he/she is involved, that term will automatically be extended until completion of all the procedures set out in step 3.
Members of the Panel shall be impartial, using their independent judgment to help resolve grievances.
Once notice of the intention to proceed to conciliation has been duly given, the President of the University and the President of the Association1 or their delegates shall each, within five (5) working days of giving or receiving notice, select one (1) member from the Grievance Conciliation Panel to form a Conciliation Committee. These two (2) members will immediately select a Chair for the Conciliation Committee from the Panel or, in the event of a disagreement, the Chair will be chosen by lot from the Panel.
A Committee member shall be excused from hearing a particular grievance where he/she has had prior involvement in the grievance, or where there is a reasonable apprehension of bias or conflict of interest. This issue may be raised by the Committee member or by a party to the dispute and the remaining two members of the Panel will decide if replacement of the Committee member is warranted. Where a Committee member has to be replaced, the party which made the appointment shall name a replacement from the Panel. Should the Chair of the Committee be excused for this reason, then the two remaining members of the Committee will choose a Chair from the Panel. If they cannot agree, the Chair will be chosen by lot from the Panel.
Within five (5) working days after the formation of the Committee, the Grievance Conciliation Committee shall call a meeting of the parties and representative(s)/support person(s) directly involved in the grievance.
The Grievance Conciliation Committee shall assist the parties in their effort to resolve the grievance using mediation, conciliation or other procedures to encourage settlement. If a settlement is reached, it shall be committed to writing and signed by the parties. A copy of the settlement shall be forwarded to the Association where it has represented a grievor(s). Where the Association has not represented the grievor(s), the settlement will be without identifiers. The Committee shall, at the request of either or both parties, produce a written report within ten (10) working days of the final meeting with the parties. This report will be forwarded to the Association where it has represented the grievor(s). Where the Association has not represented the grievor(s), it shall receive a summary of the report without identifiers.
If the efforts of the parties at step 3 to resolve a grievance are unsuccessful, any of the parties may submit within ten working days, the matter to binding arbitration by a single arbitrator. All parties shall be notified of such action in writing.
Step Four: Arbitration
(a) Appointment of Arbitrator
Every other year the University and the Association will name six (6) arbitrators to serve for a two year period. Each of the arbitrators shall serve singly on a rotating basis. If an arbitrator is not available within a reasonable period of time, but in any event not to exceed one (1) calendar month, the next arbitrator in the rotation shall be selected 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 of the parties to the grievance, any one may be selected out of turn. If 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 unless the parties agree to delay the arbitration long enough to make it feasible for one of the named arbitrators to serve. If such selection has not been made within seven (7) working days, any party may request the Minister of Labour for British Columbia to make the appointment.
(b) Time Frame
Following consultation between the parties, the arbitrator will establish the procedure to be followed within two (2) weeks of his/her appointment. The arbitrator shall render his/her decision within four weeks of establishing the procedure. The time frame may be varied by mutual consent of all parties.
(c) Resolution of Grievances
(i) Where the grievance relates to the interpretation, application or alleged violation of the Framework Agreement or of any policy affecting members' terms and conditions of employment, the decision of the arbitrator is final and binding upon the parties.
(ii) Where the grievance relates to a void in the Agreement or policy or to a breach in the duty of fairness and the grievance is upheld, the arbitrator shall annul the decision on which the grievance was based. The matter shall then be referred back to the appropriate administrator for reconsideration. In referring the matter back the arbitrator may make such recommendations as he/she deems appropriate. The decision-maker shall respect the general principles articulated by the arbitrator in making the decision de novo .
(iii) In making a decision, the arbitrator shall not modify the language of the Framework Agreement or of any policy affecting members' terms and conditions of employment.
(d) An arbitrator shall not be barred from hearing a grievance and rendering an award solely on the basis of a procedural or technical irregularity arising under this Agreement.
(e) The respondent has the right to seek to prevent a case proceeding to step 4 by requesting an arbitrator to rule whether the case is frivolous or vexatious. If the arbitrator rules in the affirmative, the case may not proceed further and the grievor will bear 100% of arbitrator's costs. If the arbitrator rules in the negative, the respondent will bear 100% of cost of the arbitrator. The case may then proceed to step 4.
(f) In Step 4, the next arbitrator in rotation will be chosen to hear the case. The respondent and the grievor shall share equally the cost of the arbitrator in step 4.
12.4 The Association will do its utmost to provide representation and/or support at Steps 1 and 2 for any bargaining unit member who so requests. Beyond Step 2, representation and/or financial support are discretionary. If no such representation or support is provided by the Association, the member may still proceed beyond step 2; however, in this situation, the Association will take no part in any proceedings that occur beyond step 2 and will not be responsible for any costs incurred in relation to steps 3 and 4.
12.5 The Resolution of Disagreements section will not be applicable to disagreements which became known or ought reasonably to have become known to the party or parties affected prior to this section entering into force. However, if all parties agree in writing, a disagreement may be dealt with under this section even though the disagreement arose prior to this section entering into force.