Policy 36 – Dispute Resolution for University Support Staff | Secretariat

Established: October 25, 1971

Last Updated: March 30, 2011

Class: S

1. PREAMBLE

This Policy provides a confidential, effective and fair way to resolve problems, disputes, misunderstandings and disagreements concerning management action or inaction directly affecting a staff member. Complaints concerning the failure to apply or misapplication of a University policy, procedure or guideline may include matters such as abuse of supervisory authority, demotion, working conditions, discipline and discharge.

Refer to Appendix A for a comprehensive set of procedures regarding the stages identified below.

UW is committed to the following:

A staff member has the right to question management decisions, in confidence and without reprisal or fear of reprisal.
Questions, concerns and debate are healthy and encouraged.
It is in the best interests of staff and UW to address concerns in good faith, informally and in a timely manner.
Resources are available to staff to assist in the resolution process.
A staff member has the right to proceed formally if the informal process proves unsuccessful or to bypass the informal stage and proceed directly to the formal stage.
Everyone involved in the dispute resolution process will hold all matters in confidence and conduct themselves in a professional manner.

Responsibility for initiating the dispute resolution process rests with the staff member who is experiencing a problem. A group complaint can be brought by a group of staff members who seek the resolution of the same issue.

2. ELIGIBILITY

This Policy applies to any regular staff member (as defined in Policy #54) who has completed his/her probationary period. A probationary staff member should contact the Staff Association and/or Human Resources for advice on addressing disputes.

3. ADVICE AND SUPPORT

At any stage in the process, the staff member and manager are entitled to receive assistance of, and may be accompanied by, a support person from the regular staff of his/her choosing. Parties may consult a lawyer for advice, but lawyers may not attend at any stage. The role of the support person will be dependent on the needs of the party, and may include providing emotional support, speaking on behalf of the party, and helping the party navigate the process.

4. LIMITATIONS

Financial remedies beyond what is provided by University policy are not available as a resolution. For example, a Tribunal can award monetary compensation only when it flows from the application of another UW policy, such as payment for overtime under Policy 16. A Tribunal cannot award compensation for mental distress or pain and suffering.

In dealing with a complaint, a manager or Tribunal does not have the authority to amend or add to any of the provisions of this Policy or any University policy, procedure or guideline, or to give a decision inconsistent with the above.

Anyone has the right to start a legal action. However, if a party starts legal action or takes the issue to an external agency (e.g., Ontario Human Rights Commission), the process under this Policy will cease.

5. RESOLUTION STAGES

Informal Stage

Concern with a management action may arise from misinformation or a lack of understanding, an action that has been based on incorrect facts, or an action/decision that is inappropriate and should be modified, all of which can be addressed informally between the parties.

Possible outcomes of the informal stage are: explaining the action in question to the satisfaction of the staff member involved; modifying the action; reversing the action; or concluding that some other method of resolving the issue should be pursued (e.g., taking it to the next level of management).

Discussion Phase

This phase is initiated by a staff member expressing concern to the manager whose action or inaction is being questioned. The communication may be oral or written and must refer to the informal stage of this Policy. The manager will meet with the staff member to discuss the concern and respond with reasons.

Mediation Phase

Involvement of a third party may be useful in helping the parties to resolve the issue. Mediation requires that the staff member and his/her manager agree to the involvement of a third party. Trained mediators can be accessed through the Conflict Management & Human Rights Office and Human Resources.

Formal Stage

Where the discussion and/or mediation phases have not resulted in a resolution, or where those phases have been bypassed by the staff member, the staff member has the right to request that the issue be heard by a Tribunal.

Possible outcomes of the formal stage are: confirming the action; modifying the action; reversing the action.

6. TIME LIMITS

Informal Stage

A staff member should seek resolution as soon as possible after the event. There is no time limit for resolving issues informally; however, a staff member should be aware of the time limits for initiating the formal stage in case he/she may wish to progress to that stage.
The manager will respond to the staff member within five working days (i.e., Monday to Friday, inclusive, excluding statutory and University holidays) of receiving the complaint. The staff member and manager may agree to suspend this time limit for a reasonable period to facilitate the informal resolution of the complaint. Any such agreement shall be in writing.

Formal Stage

In situations related to termination of employment, the staff member must initiate the formal stage within 10 working days after receiving notice.
In all other situations, the staff member must initiate the formal stage within 60 working days from the event.
Within two working days of receipt of a request, the process to establish a Tribunal will begin.
Within five working days of its establishment a Tribunal will determine whether the issue is to be heard.

Time limits may be extended by a Tribunal which may decide to entertain a dispute where the time limits have not been complied with, if the Tribunal is satisfied that neither the staff member's nor the University's position has been substantially prejudiced by the delay.

7. DISPUTE RESOLUTION POOL

If a matter is proceeding to the formal stage, a Tribunal will be formed from the Dispute Resolution Pool. The Dispute Resolution Pool will consist of 12 staff members appointed by the President for three-year overlapping terms from nominations determined as follows:

Six full-time staff members chosen from nominations submitted by the Staff Association.
Six full-time staff members chosen from nominations submitted by the Vice-President, Academic & Provost.
The Staff Association President and the Vice-President, Academic & Provost will consult one another regarding their respective nominations so that all nominations are mutually agreed upon before the names of the 12 nominees are submitted to the President for consideration.

The initial terms of appointment for those submitted by each nominating body shall be two members to April 30, 2009, two members to April 30, 2010 and two members to April 30, 2011. Pool members are eligible for reappointment for a subsequent three-year term.

Commencing May 1, 2011, after consulting with the Staff Association President and the Vice-President, Academic & Provost, the President will designate one of the members to be Chair of any Tribunal formed during the following three-year period, provided that if the Chair is challenged by either party in a formal stage (see Appendix A, paragraph 2), a replacement Chair will be named for that case in the same manner.

The Department of Organizational & Human Development and the Secretariat will provide annual training to the Dispute Resolution Pool on facilitation skills, Tribunal process, policy interpretation and the rules of natural justice.

8. TRIBUNAL

Mandate

The mandate of a Tribunal is to determine whether to hear a case and, if hearing a case, to conduct a hearing and render a decision. A Tribunal's decision, which is final and binding on the parties, will be based on its determination of the relevant facts and a reasonable interpretation of a University policy, procedure or guideline as it applies to the situation under dispute.

A Tribunal is in charge of its own process, which must be informed by natural justice (i.e., ensuring fairness and due process). To that end, the parties have the right (i) to be heard, which includes the right to notice of the hearing, to name and to question witnesses, and to receive written reasons for the decision and (ii) to have the decision made by an objective, unbiased decision maker.

Composition

A Tribunal will consist of the Chair and any two members from the Dispute Resolution Pool chosen by the Secretariat from a rotating list, taking into consideration any prior involvement in the case and any known conflict of interest.

Chair

The role of the Chair is to provide structure and order to the formal hearing and to ensure fairness. The Chair does not have the authority to act on behalf of the Tribunal.

Resource Persons

The Tribunal may call resource persons (e.g., a representative from the Human Resources Department if the issue pertains to staff employment; from Finance if the issue is of a financial nature), as necessary.

Secretariat

The Secretariat provides support to a Tribunal by being the initial contact point for the staff member at the formal stage and by coordinating communication to ensure that all participants -- staff member, manager and Tribunal members -- have copies of all material and documentation, including names of support person(s) and witnesses. The Secretariat does not actively participate in the hearing, but ensures a record of proceedings is produced and provides procedural guidance to the Chair, including assistance in drafting a Tribunal's decision.

Decision

The decision of a Tribunal will be communicated by the Secretariat, in writing and in a timely manner, to the parties, the department head of the manager involved, and the Associate Provost, Human Resources.

9. RECORDS

All information regarding an issue dealt with under this Policy shall be kept in confidence. After a decision is rendered, each Tribunal member shall return all written material to the Secretariat for destruction and delete all electronic information from his/her computer. A file shall be maintained by the Secretariat in compliance with the University's records retention schedule.

10. REPORTING

A summary of decisions with identifying names and details removed to ensure confidentiality will be provided on an annual basis by the Secretariat to the Staff Relations Committee for release to the campus community.

Twice a year, at a minimum, the Dispute Resolution Pool, with Secretariat assistance, will report to the Staff Relations Committee any issues of concern regarding misapplication, misinterpretation or confusion regarding policies, procedures or guidelines and may offer suggestions for change or modification. These issues are not part of the decision made by a Tribunal. The Chair of any Tribunal that raised a concern will attend the Staff Relations Committee meeting where the concern will be discussed.

APPENDIX A - Procedures

1. INFORMAL STAGE

Discussion Phase

The staff member should seek resolution as soon as possible after the event, taking into account the time limits for initiating the formal stage in case he/she may wish to progress to that stage.

The staff member expresses his/her concerns orally or in writing to the manager whose action or inaction is being questioned, referring to the informal stage of this Policy. Within five working days of receiving the concern, the manager will meet with the staff member to discuss the concern and respond with reasons.

Mediation Phase

If the staff member and the manager agree to mediation, the manager will initiate the process by contacting the Conflict Management & Human Rights Office. Both the staff member and the manager must agree to the individual who will serve as mediator and to the mediation process.

2. FORMAL STAGE

Time Limits

In situations related to termination of employment, the staff member must start the formal stage within 10 working days of receiving notice.

In all other situations, the staff member must start the formal stage within 60 working days of the event.

Submission of Documents

Documents may be submitted personally or by email, regular mail, or fax. If submitted by email or fax, it shall be deemed to be received on the next day that is a working day. If the document is sent by mail, it shall be deemed to be received on the 5th working day after it was mailed.

Requesting a Hearing

To request that an issue be heard by a Tribunal, the staff member must submit to the Secretariat a Request for a Dispute Resolution Hearing Form 36A which will include a brief written explanation of the issue and the policy, procedure or guideline under which the dispute is filed, the remedy sought, and a chronology of what attempts, if any, have been taken to try to resolve the issue.

Tribunal

Within two working days of receipt of the Request for a Dispute Resolution Hearing, the Secretariat will name three potential Tribunal members and provide them with the Request for a Dispute Resolution Hearing. If a member is unable to serve, the Secretariat will identify another member from the rotating list. This process continues until a Tribunal is formed.

Staff Member Accept or Challenge

The names of the Tribunal members will be forwarded to the staff member who will notify the Secretariat by email whether he/she accepts or challenges the composition of the Tribunal within two working days. The Secretariat will replace a challenged member and advise the staff member by email of the replacement. This process continues until a Tribunal is formed.

Within five working days of the formation of the Tribunal, the Tribunal will meet to determine whether the matter can be heard under this Policy. The decision is final and will be communicated to the staff member by the Secretariat by email the day the decision is made. If the decision is that the matter cannot be heard, written reasons for the decision will be communicated to the staff member by the Secretariat within two working days.

Supporting Information

Within five working days of the decision to hear the dispute, the staff member will submit to the Secretariat any additional relevant information including the names of witnesses and the support person, if any, who will accompany the staff member to the hearing. A copy of the material submitted by the staff member will be forwarded to the manager by the Secretariat.

Within five working days of receipt of the staff member's material, the manager will submit to the Secretariat a written response that includes any documentation relevant to the hearing, the names of witnesses, and the name of the support person, if any, who will accompany the manager to the hearing. A copy of the manager's material will be forwarded to the staff member by the Secretariat.

Manager Accept or Challenge

The names of the Tribunal members will be forwarded to the manager by the Secretariat. The manager shall notify the Secretariat by email whether he/she accepts or challenges the composition of the Tribunal within two working days. The Secretariat will replace a challenged member and advise both parties by email of the replacement. Each party shall notify the Secretariat by email whether he/she accepts or challenges the replacement. This process continues until a Tribunal is formed. Copies of all information will be forwarded to the Tribunal by the Secretariat.

In Camera Meeting of Tribunal

Within 10 workings days of the formation of the Tribunal agreed to by both parties, the Tribunal will convene in camera to clarify the issues raised in the parties' material, determine whether any Resource Person(s) is needed, and review the process to be followed during the hearing.

3. HEARING

All proceedings are confidential. The parties and support people have the right to be present throughout the presentation of evidence and summations.

The hearing will occur within 20 working days of the Tribunal's decision to hear the matter.

Parties shall have copies of and access to all material presented to the Tribunal, unless there is a clear reason, to be determined by the Tribunal, why this would be inappropriate or would violate confidentiality (e.g., identity of co-workers, personal medical information). If information is not to be made available, the parties will be so informed, with reasons.

If a party is not able to deliver its materials by the deadlines specified in this procedure, the party may request an extension of time. The request shall be made in writing to the Chair prior to the specified deadline. The request shall include the reasons for the requested extension and the length of extension sought.

The Tribunal may alter any time limit established by this procedure. In deciding whether to grant an extension, the Tribunal will consider the adequacy of the reasons given for the extension, and any prejudice that may result from an extension. If an extension of time is granted to one party, the Chair will inform all parties of the revised schedule, in writing. The decision of the Tribunal is final.

Order of the Hearing

At the outset of the hearing, the Chair shall:
1. review the order of the hearing,
2. note for the record the documentary information submitted by the parties, and
3. note the names of the witnesses for each party.
The staff member is the first party heard.
1. Staff member's opening statement shall contain:
  - a brief description of his/her claim, including what he/she believes was unfair, unjust or unreasonable about the action or decision; and
  - what remedy he/she seeks.
2. Staff member's case provides the factual support to show why his/her claim should be remedied and may include any or all of the following:
  1. staff member's oral testimony;
  2. oral testimony of staff member's witnesses; and
  3. documents or other written evidence in support of this testimony.
3. Questioning of the staff member and his/her witnesses by the manager and/or by the Tribunal occurs at the close of each person's testimony.
Following the completion of the staff member's case, the manager presents his/her case.
1. Manager's opening statement shall contain:
  - a brief reply to the staff member's claims; and
  - the main arguments justifying the action or decision
2. Manager's case provides the factual support to defend the action or decision of the claim and may include any or all of the following:
  - manager's oral testimony
  - oral testimony of manager's witnesses; and
  - documents or other written evidence in support of this testimony.
3. Questioning of the manager and his/her witnesses by the staff member and/or by the Tribunal occurs at the close of each person's testimony.
The staff member and his/her witnesses have the right to offer testimony or other evidence in reply to the issues raised in the manager's case.
After the testimony of each witness, the Tribunal may, in addition to asking questions of the witness as permitted in clauses (b), (c) and (d) above, request copies of such documents mentioned in testimony as the Tribunal in its discretion sees fit.

After this point in the hearing, no new arguments, evidence, or witnesses may be introduced

The parties are entitled to make closing arguments, and to summarize briefly the main points of their cases, in the following order:
1. staff member
2. manager
3. staff member.
The Tribunal may alter the order described in sub-sections (a) to (e) above in the interest of fairness to any or all of the parties.

Witnesses

Parties have the right to call, question and cross-examine witnesses. Parties are responsible for producing their own witnesses and for paying the costs associated with their appearance before the Tribunal. The Tribunal does not normally call its own witnesses but may call resource persons as needed (e.g., for policy/procedure interpretation).

The Tribunal has discretion to limit the testimony and questioning of witnesses to those matters it considers relevant to the disposition of the case. The Chair may limit the questioning of a witness when satisfied that the examination has been sufficient to disclose fully and fairly all matters relevant to the matter, or that questioning is irrelevant.

Witnesses and Resource Persons are present in the hearing room only during the time they are testifying.

Recess or Adjournment

The Tribunal may consider and grant a recess or an adjournment at the request of either party to allow review of written or documentary evidence submitted at the hearing.

The Tribunal may grant an adjournment at any time during the hearing to ensure a fair hearing.

Evidence

Parties shall have knowledge of each other's case by means of the exchange of documents before the hearing.

The Tribunal has the power to require production of written or documentary evidence by the parties or by other sources.

The Tribunal has the power to rule on the admissibility of evidence.

The Chair may admit as evidence at a hearing any oral testimony or any document or other object relevant to the matter and, if it considers it to be credible and trustworthy, the Tribunal shall determine its weight in relation to the other evidence admitted.
Where the Chair is satisfied as to the authenticity of a copy of a document or other thing, it may be admitted as evidence at a hearing.
The Chair may exclude evidence on the ground that it is unduly repetitious, irrelevant, or otherwise inadmissible, for example because of confidentiality or privacy concerns.

Record of the Proceeding

Although the hearing shall be audio-taped in order to obtain an accurate record of the proceedings, such recording is done for convenience purposes only and the malfunction of the recording device or subsequent loss of the recording shall not invalidate, in any way, the related hearing. The tape shall be held in confidence by the Secretariat and made accessible to the parties. Upon release of the Tribunal's decision, tapes from the hearing shall be destroyed by the Secretariat.

Appropriate Procedures

Where any procedural matter is not dealt with specifically in this Policy, the Tribunal may, after hearing submissions from the parties and considering the principles of fairness, establish an appropriate procedure.

Any procedural requirement contained in this Policy may be waived with the consent of the Tribunal and of all the parties.

Deliberations and Decision

Following the formal hearing, the Tribunal shall deliberate in a closed session. The decision need not be unanimous; a majority vote on an issue resolves the matter.

The Tribunal shall prepare a written report of its decision. The report shall include:

the membership of the Tribunal,
the background of the case,
the Tribunal's findings of fact, and
the Tribunal's decision and the reasons for the decision.

A copy of the report shall be distributed by the Secretariat as soon as possible, normally within five working days of the making of the decision, to the parties and to the department head of the manager involved and the Associate Provost, Human Resources.

INFORMAL STAGE

Discussion Phase (if proceeding)

Who	When	What
Staff Member	As soon as possible after the event	Express concern to manager orally or in writing, referring to Policy 36
Manager	Within 5 working days of hearing from the staff member	Meet with staff member to discuss concern and respond with reasons

Mediation Phase (if proceeding)

Who	When	What
Staff member and manager		Agree to mediation
Manager		Contact Conflict Management & Human Rights Office or Human Resources
Staff member and manager		Participate in mediation

FORMAL STAGE (if proceeding)

Who	When	What
Staff member	Within 10 working days of receipt of notice of termination OR Within 60 working days of any other event	Request a hearing by submitting aRequest for a Dispute Resolution Hearing Form 36A to the Secretariat
Secretariat	Begin process within 2 working days of receipt of request	Name potential Tribunal members and advise staff member by email
Staff member	Within 2 workings days of notification of potential Tribunal members	Notify Secretariat whether accept or challenge Tribunal
Tribunal	Within 5 working days of formation of Tribunal	Meet to hold Jurisdiction Hearing
Secretariat	On day decision is made	Advise parties of decision

If hearing will be held

Who	When	What
Staff member	Within 5 working days of decision that case can be heard	Submit to Secretariat any additional information
Manager	Within 5 working days of receipt of staff member's material	Submit to Secretariat information, names of witnesses and support
Tribunal	Within 10 working days of formation of Hearing Tribunal	Meet in camera: organizational meeting
Staff member, manager, Tribunal	Within 20 working days of decision to hear case	Proceed with hearing
Secretariat	Normally within 5 working days of the decision	Send Tribunal report to staff member, manager, Associate Provost, Human Resources