Employer can’t get wish for in-person hearing for termination grievance

Credibility assessment, quality of justice equal in videoconference hearing: arbitrator

Employer can’t get wish for in-person hearing for termination grievance

An Ontario employer has been unsuccessful in its attempt to hold an arbitration hearing of a worker’s termination grievance in person rather than by videoconference.

The Canadian Union of Public Employees, Local 543, represents municipal employees for the City of Windsor, Ont. It filed a grievance against the termination of one of the city’s employees and the arbitration hearing was scheduled for January 2024.

The union and the city could not agree on whether the hearing should be held by videoconference or in-person, so the matter went before the arbitrator to decide.

The union noted that hearings were conducted almost exclusively in-person before the COVID-19 pandemic for labour relations, courts, and tribunals. The only parties using videoconference were occasional witnesses for testifying, but that changed when the pandemic arrive, the union said.

Videoconference technology improved

The union argued that the requirement for videoconference hearings during the pandemic led to an improvement in technology and an increased familiarization of all parties with using it. Videoconference hearings became normal and the grievance arbitration community “discovered that the quality of justice is the same” as in-person hearings, the union said.

The union added that the experience of videoconferencing has meant that in-person hearings are not necessary to assess the credibility of witnesses.

The union further pointed out that videoconferencing minimizes costs and improves convenience, and most arbitration hearings continue to be held by videoconference even with pandemic restrictions gone.

The city pushed for the hearing to be in-person, arguing that even though most hearings are still being conducted by videoconference, it doesn’t mean that the assumption should be made that it’s the presumptive norm.

Credibility better assessed in person: employer

The city argued that where credibility is an issue, in-person hearings are still useful, particularly for cases involving the termination of employment. Factors such as the importance of the case, the issues involved, the convenience of witnesses, and costs should all be considered in determining the mode of hearing, the city said.

The arbitrator agreed with the union that hearings can be conducted more efficiently with videoconferencing technology and their experience since the start of the pandemic was that credibility in grievance arbitration matters can be determined just as well in videoconferencing as with in-person hearings. This was proven by the grievance arbitration community’s willingness to continue to use videoconferencing technology to conduct hearings even after pandemic restrictions were lifted, the arbitrator said, adding that this had been noted in recent post-pandemic jurisprudence.

The arbitrator also pointed out that “videoconference hearings do not cancel for reasons such as snowstorms, aircraft or trains being grounded.”

The arbitrator noted concerns of not being able to assess someone’s demeanour on videoconference, but it should not be determinative of the mode of hearing, given “what little utility that may have.”

OLRB, courts returned to in-person hearings

The city pointed out that the Ontario Labour Relations Board (OLRB) had returned to largely in-person hearings, but the arbitrator found that the OLRB dealt with a different community than grievance arbitrations – that could involve parties not in a collective bargaining relationship or are new to each other. OLRB hearings had a different dynamic that parties in a collective bargaining agreement as do the courts, the arbitrator said.

The arbitrator considered that, in Ontario, the current predominant practice in grievance arbitration was videoconference hearings; arbitrators can assess credibility equally in in-person or videoconference hearings; the quality of justice is equal in both types of hearings; and videoconference hearings are more convenient and cost-efficient.

The arbitrator also found that if any party in a hearing is concerned about contracting COVID-19 or other communicable diseases that are circulating – or they were ill but still well enough to participate via videoconference - it wouldn’t be reasonable to require them to attend a hearing in person.

The arbitrator determined that there was no reason that the grievance arbitration hearing couldn’t be conducted by videoconference and scheduled it as such. See Canadian Union of Public Employees, Local 543 and The City of Windsor, 2023 CanLII 104942.

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