SFUFA Grievance and Arbitration Agreement

 SFUFA Grievance and Arbitration Agreement

Revised April 2013

Two copies of this document should be provided to a member and signed before the initiation of a formal grievance process which is likely to require legal or other professional advice or is expected may proceed to arbitration or other hearing. One copy shall be provided to the member for her/ his records, the other copy to be retained by SFUFA. Members will also be provided with the Representation Decisions and Appeal Policy and the Policy on Payment of Members’ Legal Expenses, referred to as Appendix A and Appendix B respectively.

Prior to the initiation of a formal grievance or similar process, it is important that the member(s) involved clearly understand the process, and the terms and limits of Faculty Association representation including financial expenditure on the case.

SFUFA takes seriously its mandate to support its members and represent them in employment related disputes with the University. The Association does not represent members in cases not directly arising from or related to the employment relationship. (See Appendices, Representation Decisions and Appeal Policy and Policy on Payment of Members’ Legal Expenses.)

The grievance process begins with attempts at informal resolution. Beyond this, a formal process exists which may lead ultimately to legally-binding third party resolution. Representation is not an unlimited right, and members should clearly understand the following:

a)    a SFUFA-initiated and/ or supported grievance is  legally the property of the Association. That is, the Association retains the right to determine whether the case has merit and the chances of success and these, among other considerations, shall determine whether the case is pursued.

b)   The Association retains professional staff to process grievances, and staff generally will advise members on how a case ought to be brought forward. In particularly important matters, the Association may also retain legal counsel to assist where deemed necessary. Decisions regarding the use of legal counsel or other professional services rest with the Association, and only the Executive of the Association may approve the expenditure of funds for these purposes.

c)    SFUFA, its staff and its legal counsel will consult with members and consider members’ opinions on the handling of grievances, but the ultimate decision on whether or how to pursue a case rests with the Association, as specified in Appendix A. SFUFA may decline to initiate or may refuse to pursue a case at any stage on any reasonable grounds. Circumstances leading to the decision to decline or abandon a case may include the following:

–       the matter is not within the ambit of SFUFA’s responsibilities as bargaining agent;

–       the matter lies outside of the Association’s jurisdiction, i.e. is not arbitrable under the law;

–       the case lacks sufficient merit to proceed;

–       the interests of the individual run counter to the interests of faculty members in general or SFUFA as an organization;

–       the costs of the case, financial and otherwise, outweigh the benefits that may reasonably be expected to accrue to the member and/or SFUFA;

–       the member refuses to follow reasonable advice provided by SFUFA, its staff or its counsel;

–       the member’s behavior is abusive;

–       the member refuses to accept a settlement deemed reasonable by SFUFA taking into account all circumstances;

–       other reasons deemed reasonable by the President of SFUFA and consistent with the law, given the prevailing circumstances leading to the issues in dispute

d)   Should SFUFA decline to pursue  a case or abandon a case before its resolution, the member has a right of appeal as per SFUFA policy (see Appendix A);

e)    If a member chooses to advance a case independently or seek third party professional or legal advice, SFUFA shall bear no responsibility for any costs incurred unless explicitly agreed in writing in advance.

f)     If a member requests at any point that SFUFA, its staff or its legal counsel consult with or otherwise engage with the member’s own professional services, costs for those services shall be borne by the member.

g)    SFUFA cannot and does not make guarantees about the outcome of a case or continued representation. Judgments regarding the merits of a case and decisions regarding representation continue to be made throughout the process as information becomes available.

h)   SFUFA understands and takes seriously its duty of fair representation, and undertakes to represent its members in good faith and without discrimination.

I have read and understood this document, and have had an opportunity to ask any questions that arise to ensure my full comprehension of the terms of SFUFA’s representation.

Name of potential grievor:                                                SFUFA Representative:

Date:                                                                                                 Date:

Signature:                                                                                    Signature:

Representation Decisions and Appeals Policy

Representation Decisions & Appeal Policy

(Appendix A to SFUFA Grievance and Arbitration Agreement)

Revised April 2013

SFUFA recognizes its duty of fair representation and undertakes to represent its members fairly, in good faith, and without discrimination.  There will be situations when SFUFA must, for specific reasons, make the decision to not represent a member on a particular matter, or to cease to represent a member in a particular matter.

1.  SFUFA may make the decision to not represent a member in a particular matter or to cease to represent a member in a particular matter in any of the following circumstances:
the matter is not within the ambit of SFUFA’s responsibilities as bargaining agent;

  • the matter lies outside of the Association’s jurisdiction, i.e. is not arbitrable under the law;
  • the case lacks sufficient merit to proceed;
  • the interests of the individual run counter to the interests of faculty members in general or SFUFA as an organization;
  • the costs of the case, financial and otherwise, outweigh the benefits that may reasonably be expected to accrue to the member and/or SFUFA;
  • the member refuses to follow reasonable advice provided by SFUFA, its staff or its counsel;
  • the member’s behavior is abusive;
  • the member refuses to accept a settlement deemed reasonable by SFUFA taking into account all circumstances;
  • other reasons deemed appropriate by the President of SFUFA and consistent with the law, given the prevailing circumstances  leading to the issues in dispute.

Staff Decision to Not Represent or to Discontinue Representing

2.  The decision to not represent a member on a particular matter or cessation of representation on a particular matter will normally be made by SFUFA staff in consultation with the SFUFA President and/or President-Elect.

3.  Should the member disagree with the decision to not represent or to cease to represent, the member shall be entitled to appeal the decision to a panel of three past presidents of the Association who have not been involved in the matter (the “Appeal Panel”).  The immediate past president will be responsible for convening the panel (whether or not he/she will be part of the Appeal Panel.)  If three past presidents are not available, past Executive members who do not have a conflict in the matter can be chosen for the Appeal Panel.

4.  The Appeal Panel shall conduct a hearing to hear from both the member and the staff person.  The hearing shall normally be limited to one hour in length. The hearing format shall be as follows:

  • Staff presentation
  • Member presentation
  • Staff rebuttal
  • Member rebuttal
  • Questions from the panel

5.  The Appeal Panel will issue recommendations, in writing, to the Executive Committee within 5 working days of the hearing.

6.  The Member and the Staff will have five working days in which to provide the Executive Committee with their response(s) to the recommendations of the Appeal Panel.

7.  The Executive Committee will make the final decision regarding a decision to not represent or to cease to represent a member taking into consideration the recommendations of the Appeal Panel and the responses.  The decision will be made “in committee” without staff members present.  Their decision will be final and binding.  Written reasons for the decision will be provided.

Decision of the Executive Committee Not to Provide Funding for a Matter

8.  The decision to not provide funding or to not continue to provide funding for a matter (including funding for legal representation) will normally be made by the Executive Committee.

9. Should the member(s) disagree with the decision to not provide funding for a matter or to not continue to provide funding for a matter, the member(s) shall be entitled to appeal the decision to a panel of three past presidents of the Association who have not been involved in the matter (the “Appeal Panel”).  The immediate past president will be responsible for convening the panel (whether or not he/she will be part of the Appeal Panel.)  If three past presidents are not available, past Executive members who do not have a conflict in the matter can be chosen for the Appeal Panel.

10. The Appeal Panel shall conduct a hearing to hear from both the member(s) and the Executive.  The hearing shall normally be limited to one hour in length. The hearing format shall be as follows:

  1. Executive Member presentation
  2. Member(s) presentation
  3. Executive Member rebuttal
  4. Member(s) rebuttal
  5. Questions from the panel

11. The Appeal Panel will issue recommendations, in writing, to the Executive Committee within 5 working days of the hearing.

12.  The member(s) will have five working days in which to provide the Executive Committee with their response(s) to the recommendations of the Appeal Panel.

13.  The Executive Committee will reconsider their initial decision taking into consideration the recommendations of the Appeal Panel and the response of the member(s).  The decision will be made “in committee.”  Their decision will be final and binding.  Written reasons for the decision will be provided to the member(s).

Policy on Payment of Members’ Legal Expenses

POLICY ON PAYMENT OF MEMBERS’ LEGAL EXPENSES

Appendix B to SFUFA Grievance and Arbitration Agreement

Revised 2013

1. The Association may retain legal counsel with special expertise in labour relations law to provide legal advice to the Association on issues relating to an individual member’s employment at SFU. The services of legal counsel must be approved in advance by the Executive, and a limit may be placed on the amount of services paid for by the Association in relation to any individual member’s case.  The Executive may also set a limit on the total amount of funds that may be expended, in any given year, for the provision of such legal services. Any limit imposed by the Executive as set out herein, may be varied or altered by the Executive at its sole discretion.

2. As a matter of general policy, the Association will not reimburse  individual members for legal fees and/or disbursements  that are incurred  for ”private legal counsel”  retained or engaged  by an individual member in connection with legal advice and/or representation concerning the terms and conditions of the member’s  employment at SFU. Private legal counsel shall be defined in this policy a meaning legal counsel retained or engaged by an individual member, as opposed to legal counsel retained by the Association.

3. The Association will not pay for costs, fees or disbursements of any professional services engaged by a member, nor any consultation with any professionals or other persons that occurs at a member’s initiation, without the express written authorization of the Executive or a person empowered to grant such authorization.  Such costs, fees and/or disbursements are the sole responsibility of the member.

4. In exceptional circumstances, the Association may reimburse all or part of any legal fees and disbursements owing to private legal counsel provided that the member concerned has received prior written approval from the Executive or a person authorized to grant such approval before any such expense are incurred. Members who wish to ascertain if their circumstances may be considered “exceptional” under this policy should contact the Executive Director for further information. It must be emphasized, however, that the payment of such fees and disbursements should be considered a rare event.

5. In determining what might be considered “exceptional” pursuant to the above, the Association will consider, among other factors: a) whether such advice can been be obtained from legal counsel retained by the Association; b) proven hardship that would be experienced in the absence of private counsel; c) whether alternative sources of advice are reasonably available; and d) whether the case raises an important issue(s) likely to impact the Association’s membership as a whole.