The implementation of the Phoenix pay system has caused significant and lasting problems for our members. The problems are both systemic and individual -the system, as a whole, does not function as it should and, as a result, individual members are affected.
The systemic failures and our response to them is the subject of this post. We will focus on the level of the individual grievance and on how we can most effectively obtain timely and meaningful remedies for our members experiencing pay issues.
Below are some guidelines to assist local stewards representing members filing a Phoenix related grievance.
Filing a grievance gives members access to significant procedural rights that obligate the employer to meet with the member and their representative, hear their issue, and provide a formal response. It is the first step on the path to having disputes formally resolved by an independent adjudicator.
There are other tools that members who are experiencing pay issues should take advantage of if they want to resolve their pay issue as quickly as possible. Here is a brief and non-exhaustive summary:
- Filing a Pay Action Request;
- Requesting Priority Payment or an Emergency Salary Advance;
- Departmental internal problem resolution mechanisms; (various, by dept.)
- For members who are going on or returning from leave or contemplating other changes to their position should ensure - to the best of their ability to do so - that such changes are accurately reflected by their departmental HR system;
- For members who have incurred out of pocket expenses, they should file a claim with the Treasury Board claims process; (https://www.canada.ca/en/treasury-board-secretariat/services/pay/submit-claim-pocket-expenses-phoenix.html)
A grievance can be filed at the same time as any of the above actions are taking place. The step hearings provide us with an opportunity to understand the nature of the pay issue, which can be particularly useful in determining whether it's a departmental or pay centre issue causing the pay disruption.
As is the case in any grievance, care should be taken to ensure that grievance timelines are being met. The failure to pay appropriately is an ongoing grievance until the date the payment is made, so any grievance filed within 25 days after the date an employee should have been paid, or within 25 days of when the late payment was made, should be considered timely. There is an exception for members who have made a claim for out-of-pocket expenses through the Treasury Board claims process - if
their claim is denied, they will retain the right to grieve within 25 days of the denial.
POTENTIAL GRIEVANCE WORDING
The following wording is provided as a suggestion and only the parts relevant to a particular case should be included in a grievance form:
The employer has violated the Pay Administration Article (e.g. 65.02(a)), Appendix A-1 (or relevant pay appendix), and any and ail other relevant articles of the Collective Agreement, related legislation, and policy by failing to pay me accurately, on-time, or by repeatedly failing to pay me accurately and on-time for the work I have performed, as per the employer's usual practice (i.e. bi-weekly, by direct deposit).
(If related to overtime pay, or allowances, list those articles)
(If the employer's failure to pay members accurately has had a disproportionate impact on individuals due to their membership in a group protected under the CHRA (i.e. disability, family status, sex,race, etc.), grievances should also specifically cite the No Discrimination Article of the Collective Agreement (Article 19).
Sample language for a discrimination claim:
The employer has violated Article 19, No Discrimination of the Collective Agreement and related policy and legislation including but not limited to the Canadian Human Rights Act by discriminating against me by the improper provision of pay and/or by failing to accommodate me on the basis of my disability (for example, a member who is on a gradual return to work but is not being paid on time may have difficulty with the return to work due to a lack of funds to pay for transportation, food, maintain shelter, etc.).
Corrective action language:
1) A declaration the employer has violated the collective agreement
2) Immediate payment of any and all outstanding compensation that I am entitled to.
3) Compensation for any losses suffered as a result of the employer's actions or inactions.
4) Payment of damages caused by the employer's actions or inactions.
5) That I be made whole.
6) Any other redress deemed appropriate by an adjudicator.
7) (For those claiming discrimination only) Damages pursuant to subsection 53(2) (e) and 53(3) of the Canadian Human Rights Act, Members who have filed a grievance citing the No Discrimination clause may also file a Human Rights Complaint. To do so they need to contact the Canadian Human Rights Commission and get a file number, after which the CHRC will send a letter to the complainant telling them they need to first go through the grievance process. Note that it can be quite difficult to have a complaint heard where there is a grievance procedure available as the complainant must demonstrate that the grievance procedure was incapable of fully and finally addressing the substance of their complaint.
Finally, for members seeking interest on amounts owed to them, note that the Federal Public Sector Labour Relations and Employment Board has no authority to award interest except in cases of termination, demotions, suspension or financial penalty.
MEETING WITH THE MEMBER
For those of you for whom this will be the first time needing to meet with the member, attached to this page you will find the Steward fact sheet created by the Public Service Alliance of Canada. Simply following this form from beginning to end with the member will result in having a very good baseline grasp of what the grievance may be. Please also make sure to use all of the resources available to you: other Stewards, local Presidents, National Vice Presidents, the Regional Union Offices or even the National Office.