Transcript - Hearing Both Sides: Formal and Expedited Adjudication

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NARRATOR:

We can only imagine a working world where everyone sees eye to eye, where conflict is non-existent, and grievances are unheard of. Reality is, workplace disputes occur—and when they do, the parties involved have several options for resolving their differences. There are times when the parties are unable to come to an agreement on their own. At that point, they may decide to have their differences formally heard and decided on by an adjudicator with the Public Service Staff Relations Board. True to its name, the Board governs working relations among Government of Canada employees across the country.

The Board processes hundreds of disputes each year, on matters ranging from contract interpretation to disciplinary action and termination. Cases involving collective agreements, by the way, are always referred to the Board by a union. Before any such referral may be made, however, the grievance must first have passed through the appropriate process of the department or agency in question. Today, we're going to learn about a grievance that resulted in a formal hearing: the dispute between facilities worker Richard and his property-manager supervisor, Joan.

Cell phone rings.

RICHARD :
Richard here.
JOAN :
Richard. Just got a call from an ADM assistant who's got a room full of visiting executives—and they're melting. No one can figure out what's wrong with the A-C over there. I need you over there right away.
RICHARD :
Yeah, yeah, ok.
JOAN :
Great. Thanks a bunch, Richard. And listen, give me a call once you get there and you find out what's going on…
RICHARD :
Yeah, yeah, will do.
JOAN :
Ok, great, bye!

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Phone rings.

JOAN :
Hello? What? Monique, my apologies— put out a service call over an hour ago. Let me get right on it, and I'll call you right back. And again, my apologies. He had better have a good reason this time.
RICHARD :
Richard here.
JOAN :
Where the hell are you?
RICHARD :
I'm on my way there. I got held up after lunch—
JOAN :
You took lunch?
RICHARD :
Yes! I did! I've been working since the crack 'o dawn…I've gotta eat, for Pete's sake!
JOAN:
Well tell that to the ADM when he asks why the hold-up. Monique just called again from his office.
RICHARD :
I'll be there in five.
JOAN:
I'm gonna hold you to that.
NARRATOR :
Feeling strongly that Richard had acted irresponsibly and unprofessionally, Joan imposed a five-day suspension on him. Richard, in turn, filed a grievance; he felt equally strongly that, as a dedicated and hard-working public servant, he had done the best he could under the circumstances.
NARRATOR :
The dispute made its way through the grievance process, with Richard and Joan attempting to resolve their differences through mediation—but to no avail.
YVON TARTE
Good morning! My name is Yvon Tarte…
NARRATOR :
Now, formal adjudication seems the only option.
YVON TARTE
…fine. If at any time during these proceedings the parties feel that they would like to continue discussing settlement, just please tell me…
NARRATOR :
The adjudicator begins the hearing by introducing himself and asking the parties to do the same. He also asks if the parties have had an opportunity to discuss settlement and, finally, if there are any preliminary issues to be dealt with. Either party may then request the exclusion of witnesses.
MICHELLE:
I'd like to request an order for the exclusion of witnesses.
NARRATOR :
The adjudicator then asks that anyone likely to be called to testify leave the room. He reminds everyone that testimony may not be discussed outside the hearing room until the hearing is over. He then asks the representatives for their opening statements, after which the parties call their witnesses to testify. Because this hearing relates to a disciplinary matter—with the onus of proof therefore resting on the employer­—Joan proceeds first.
YVON :
Would you put your right hand on the bible please. Do you swear that the evidence that you give this tribunal will be the truth, the whole truth and nothing but the truth, so help you God?
JOAN:
I do.
YVON :
You may sit down.
CLAUDE :
Please tell us what happened on Wednesday, July 18.
JOAN:
I received a fairly urgent call from Monique Lachance, an ADM assistant. She explained that there were problems with the air-conditioning system at her office—temperatures that day were pushing 40 degrees with the humidex. The ADM had actually stepped out of an important roundtable to ask Monique to call us.
YVON :
Well, it involves the swearing in of witnesses; the examination, cross-examination and possible re-examination of those witnesses— It also involves the handing down of a formal decision, some two months after the last day of hearing. The parties may, if they wish to, subject that decision to judicial review. I'm happy to say, however, that in the board's 35 odd years of existence, very few cases have been sent to judicial review. And of those that have, very few have been overturned by the courts. All matters referred to the Board are initially sent to mediation, unless one or both of the parties advise in writing that that is not acceptable.
YVON :
In such cases, a board member will be appointed to hear the case and render a decision, because the parties cant agree on a solution of their own.
NARRATOR :
A grievor submitting a case for formal adjudication can expect to wait approximately three to six months before the case is set down for hearing. To encourage open and informal dialogue, hearings are not recorded.
NARRATOR :
In Richard's case, the onus of proof is—as mentioned earlier—on the employer to defend the disciplinary action taken. In cases involving a contract dispute, the onus is on the union to defend its interpretation of the collective agreement.
NARRATOR:
Formality is a key factor that sets formal adjudication apart from other forms of dispute resolution. Another factor is the usual involvement of witnesses.
NARRATOR :
Here, Claude—the employer counsel—questions a witness, Diane. Diane is Richard's former supervisor.
CLAUDE :
Would this kind of behavior have occurred when you worked with Richard?
DIANE :
Yes, indeed… which isn't to say that he wasn't a competent worker. He was. His clients liked him very much. But his co-workers…
NARRATOR :
Often, the facts uncovered during a hearing related to a disciplinary matter point not merely to an isolated dispute but to a larger, ongoing problem. In this case, Diane explains to the tribunal that she found Richard to be a competent worker, but also a moody one, who had in fact received a written reprimand for his behavior. This is the same kind of behavior that current supervisor Joan has encountered—and for which she too has already issued a written reprimand.
YVON :
Counsel, could you please call your first witness.
MICHELLE:
I would like to call Richard, the grievor, to the stand.
NARRATOR :
It soon becomes apparent that there are two sides to the story, as indicated by Richard's testimony and also by evidence such as the job log for the day in question—presented later by Michelle.
RICHARD :
Well, our department is understaffed—there's no two ways about it. And you throw a heat wave into the equation, which quadruples the number of service calls… well, the simple fact is that we just can't keep up. Now on the day the incident happened, I was working 12-hour days—and often in extremely hot conditions. Now my witness will back me up on that. On days like that, you have to take a break. Because the calls just keep coming in.
NARRATOR :
Just as union counsel Michelle presented the job log as evidence to support Richard's arguments, Claude—the employer counsel representing Joan—presents the two letters of reprimand against Richard.

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NARRATOR :
It seems both parties have presented valid reasons why they took the action they did. Richard says that he was overworked and needed to take time out before tackling the next job. Joan says that Richard's behavior at work had, in the past, been less than exemplary—to the point of formal reprimand. But as the hearing continues and cross-examination takes place, additional details are uncovered that further clarify the situation, and help the adjudicator make an informed decision. It must be remembered, too, that this decision can be based only on admissible evidence tendered at the hearing, and on the arguments made by counsel.
CLAUDE :
You have stated that on the day in question, you absolutely needed a lunch break, which you took. You also, told Joan that you were "held up" after lunch. Could you explain why?
RICHARD :
I had to go to the post office.
CLAUDE :
What possible urgent business could you have had there?
NARRATOR :
The cross-examination reveals that after lunch, Richard remembered that his wife had asked him that morning to Express-Post a birthday gift to her mother in Winnipeg. He figured that he had better drop it off at the post office after lunch, rather than run the risk of forgetting to send it altogether. It was after leaving the post office that he received the second call from Joan regarding the malfunctioning air-conditioning.
RICHARD :
I'm on my way there. I got held up after lunch—
CLAUDE :
I suggest to you sir that on the day in question…
NARRATOR :
In his cross-examination of Richard, Claude asserts that Richard's stop at the post office was irresponsible, and further delayed service urgently needed by a client.
RICHARD :
But I was there all of three minutes! And I don't have time to look after that kind of thing before and after work—I'm too busy! By the time I finish, the post office is closed.
NARRATOR :
In hearing the arguments, the adjudicator makes every effort never to favour one party over another. Rather, he considers both sides carefully, and strives to come to a decision that not only resolves the dispute in question but also addresses possible underlying symptoms. Symptoms such as those revealed by the testimony of Richard's co-worker, Doug.
YVON :
You may sit down.
MICHELLE:
Doug, would you describe Joan as a fair employer?
DOUG :
Joan's okay, but… I think she sometimes forgets what it's like to be in the trenches, so to speak.
NARRATOR :
Doug explains that while he believes Joan to have good intentions, he feels Joan's service goals are unrealistic. Consequently, Joan's employees can't possibly live up to the schedule she sets and the promises she makes to clients. It's a situation worsened by minimal staff and extreme temperatures.
DOUG :
…and sometimes, between the group and employees… sometimes personalities clash together…
NARRATOR :
Clearly, the detailed evidence uncovered at a hearing can shed significant light on a case… as can the review of relevant past cases—a practice known as jurisprudence, and a common procedure in formal adjudication.
MICHELLE:
I'd like to cite the case of Robinson vs. Treasury Board—1998—in which Ms. Robinson filed a grievance against her employer because she felt that…
NARRATOR :
The hearing is almost over. Witnesses have been examined, cross-examined and re-examined. Evidence has been put forth for consideration. The parties have presented their arguments. Take note, too, that while hearings are formal, regimented procedures, the individual processes within them can vary. For example:
NARRATOR :
Parties who speak languages other than English or French may present their arguments through an interpreter. In such cases, the interpreter is also sworn in. When circumstances dictate, parties may bring in expert witnesses, just as they do in court cases. On the subject of swearing in, the oath may be taken using holy books other than the bible, or it may be taken by way of solemn affirmation.
ADJUDICATOR :
Do you solemnly declare that the evidence you will give this tribunal shall be the truth, the whole truth and nothing but the truth?
WOMAN :
I do.
ADJUDICATOR :
Thank you.
NARRATOR :
In some cases, a particular location or site is relevant to the dispute; an adjudicator may request a site visit, to which all involved parties are invited.
NARRATOR :
With the completion of the hearing today, Joan and Richard can expect to receive a written decision within two months. The hearing now concludes with the adjudicator's closing statements.
YVON :
Thank you, ladies and gentlemen, this concludes the hearing portion of this case. As is the practice at the board, I will take this matter into deliberation. You should have my decision within about two months. Once again, thank you.
YVON :
Very few of these cases are black and white—if they were, the parties wouldn't be here. In a case such as this one involving Joan and Richard, one would have to take into account the fact that Richard is a competent employee and that Joan is, generally speaking, a fair supervisor. You would have to weigh that against the fact that  Richard has some discipline to his record—a couple of letters of reprimand —and the fact that Joan was setting a fairly heavy schedule for her employees. Well, another consideration in this case would be the excessive heat on that day—which made the already long days even longer. An adjudicator hearing a case would have to look at all kinds of mitigating factors, including age, length of service; whether or not the employee expressed remorse; whether there was a timely apology, ambiguous directives… These are just some of the mitigating factors that one would look at in a case such as this one. Discipline should always be corrective, and not punitive. It should also be , wherever appropriate, progressive. Well, the adjudicator in disciplinary cases may uphold the sanction imposed, reduce it or completely rescind it. And unless it is overturned on judicial review, it is binding on the parties.
NARRATOR :
Disputes are by nature confrontational. The outcome following adjudication, however, can be positive. Almost as important as the decision itself is the fact that both parties have had the opportunity to present their cases.
ROSALIE ARMSTRONG :
Well, adjudication, by its very nature, is a more formal procedure. It's not exactly like court, but it indeed is very formal, in that the people do have to take an oath, they are examined and cross-examined. As well, they have to testify about things that are very personal to them. People spend probably eight or nine hours a day at work, and it's something that is of great importance to them. And they often have to testify about their relationship with their colleagues, their work habits, and even their own lives outside of work, sometimes raising medical issues or other personal matters. So while all of that candor is important to the adjudication process, it can also be very daunting to the witnesses involved in the case.
GEORGE NADEAU :
Generally speaking, it's a more formal procedure. It's an adversarial procedure, it's a procedure where each party has an opportunity to present there case to a third independent party who is going to render a decision, a decision which is going to be applicable, enforceable in law. So that is fundamentally what adjudication is about. It's an event, it's a moment where each side will have the opportunity to present the evidence which they have gathered, and make the arguments. In the end, the adjudicator will make a decision.
NARRATOR :
Expedited adjudication is another method of dispute resolution that—as its name implies—condenses, simplifies and thus accelerates the adjudication process. Parties wanting adjudication would be wise to consider an expedited hearing before deciding on a formal one. Expedited or formal, adjudication is an integral part of the democratic checks and balances that protect our rights and, specifically, our rights in the workplace. Adjudication ensures that when we feel those rights are threatened, we can speak up—and know that both sides will be heard.

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Expedited Grievance Mediation

NARRATOR :

Conflict, like collaboration, is part of human nature. And here in the workplace, disputes do arise. Often, however, it's not necessarily the topic of the dispute itself that determines the chances of resolution, but how the parties involved deal with their differences.

The Public Service Staff Relations Board helps the Government of Canada's public servants, their employers and unions resolve all manner of disputes—related to issues ranging from disciplinary action to contract interpretation.

For many disputes, grievance mediation is often the most effective means of resolution—mainly because the parties involved arrive at a mutually agreeable decision together.

Another effective method of dispute resolution is expedited adjudication, which involves only the most experienced of the Board's adjudicators. As the name implies, expedited adjudication is a streamlined version of formal adjudication, by which the grievor's representative and the defendant present their arguments quickly—and receive a decision immediately. By contrast, the waiting period for a formal-hearing decision is normally about two months. When people opt for expedited adjudication, they are already one step closer to reaching an agreement: they have already agreed to disagree. Office manager Daniel and administrator Pauline are two such people. Let's look at the circumstances surrounding their case.

PAULINE :
Hi Daniel? You wanted to see me?
DANIEL :
Yes, Pauline, thank you. Could you shut the door, please?
DANIEL :
Pauline, too many employees in this department have been calling in sick—it seems that almost every day there's an empty desk out there, and the person in question almost inevitably shows up the next day looking perfectly chipper. So, I'm going to start applying the rule requiring employees to provide medical certificates. Now in your case…
NARRATOR :
Daniel goes on to inform Pauline that she must produce a doctor's certificate for a sick day taken two weeks prior. If she does not produce the certificate, the time will be docked from her annual vacation leave. Pauline vehemently disagrees with what she feels is a sweeping and unfair policy. She decides to file a grievance.
DANIEL :
Well, you can always go to your union rep, right?…
PAULINE :
Go to my union rep? What a good idea… Guess who I'm going to go see?
DANIEL :
And don't forget to bring a medical certificate.
PAULINE :
This is crazy…
NARRATOR :
Because this case relates to a clause in a collective agreement, the grievance must be filed by Pauline's union. Pauline consults with her union representative, Michelle. Daniel also speaks with his labour relations representative, Claude.
DANIEL :
I don't see any grey area in this matter…
NARRATOR :
In discussing the situation, the parties conclude that expedited adjudication might be the best solution.
YVON TARTE :
Welcome to this expedited adjudication session… What have we got today?
NARRATOR :
Unlike formal adjudication, an expedited hearing involves no witnesses, no testimony, and no examination or cross-examination. Consequently, there is no swearing in.
NARRATOR :
Instead, the dispute is presented in writing, in an Agreed Statement of Facts. The document summarizes the circumstances surrounding the case, and specifies areas of agreement. Upon reading the Agreed Statement of Facts, the adjudicator asks the parties to explain particular points in greater detail. After doing so, the parties may cite relevant past cases if there are any, and present any pertinent arguments.

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YVON :
So the grievor was the first person to experience this new across-the-board policy concerning medical certificates?
MICHELLE:
That's correct.
YVON :
And her absenteeism record at that time had  been good?
MICHELLE :
Yes. She recognizes that some people take advantage of sick leave—but she is not one of them. While her 24-hour flu bug did not warrant a visit to the doctor, it did leave her flat on her back for all of the Friday in question and most of the weekend. She was, well, quite frankly stunned that her employer insisted on having a doctor's certificate.
YVON :
Okay, thanks.
NARRATOR :
Similar to a formal hearing, facts often emerge during an expedited hearing that provide valuable insight into the circumstances surrounding the case. And again, the fact that the parties have been able to put their disagreement in writing—and sign it—makes the adjudication process smoother and generally less conflictual for everyone involved.
YVON :
Now in this case, the employer has argued the need to enforce its sick-leave policy and impress upon employees the seriousness of absenteeism by requiring the production of medical certificates in all sick-leave situations. The collective agreement does give the employer a certain amount of discretion in requesting medical certificates. However, it does not give it the authority to do so on an across the board basis. The request  must be made on a case-by-case basis, and since the employer has not done so in this situation, the grievance must be allowed.
NARRATOR :

A very brief written decision will be sent out to the parties within five days following completion of the adjudication process. The parties would have been made aware at the outset that, with expedited adjudication, the final decision is binding and cannot be appealed.

While the Board actively promotes and facilitates grievance mediation, it also recognizes the need for adjudication—and adjudication that is not only effective but also efficient and timely. Expedited hearings help ensure that this is indeed the case.

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