More than eight months ago, the World Health Organization declared the COVID-19 virus a pandemic. Since then, the pandemic has impacted more than just our health, it has impacted our day-to-day lives and every sector within our economy. We have been forced to adapt to a new way of doing things in an effort to slow down and stop the spread of the disease. Some of these changes have exposed us to a better way of doing things, and others have caused us more hardship.
Work is a major component of our day-to-day lives, and with over half of Canadians working in full-time positions it has created compelling needs for organizations to modify their practices. This includes processes as we know them in the labour relations world.
Background
The Belleville Professional Firefighters’ Association filed a grievance alleging inadequacies in the promotion processes for the “Training Officer” position. Hearing day one was scheduled for April 28, 2020, originally to be held in person at an Ontario-based hotel. Due to the COVID-19 pandemic, in-person gatherings were restricted, causing a total of five hearings for the grievance, between April to June, to proceed via videoconference. Two major witnesses were presented by the Association during these hearings. After the five hearings, another was scheduled for September 17, 2020, in hopes of it being held in-person.
In early September, the Association requested that the in-person meeting set later that month be converted to a videoconference hearing, which was opposed by the employer.
The employer’s opposition was based on the fact that the two parties had begun collective bargaining negotiation in-person and that the prevalence of COVID-19 cases in Belleville was very low. In addition, the employer noted that the hotel ballroom the hearing was scheduled to take place in was sizable, making it possible to accommodate physical distancing for the ten individuals anticipated to be in attendance.
In contrast, the Association recognized that the parties were permitted to meet with controlled measures in place, but given that at least one individual set to attend the hearing had underlying health issues, proceeding by videoconferencing would be just as effective and safer.
The Arbitrator’s Decision
The Arbitrator sided with the Association, concluding that holding the September 17th hearing through videoconferencing was most appropriate and that all other hearings will be held the same way. The factors that helped him come to this conclusion were the following:
- The City of Hamilton stated that as long as the pandemic is not resolved, arbitration hearings will proceed by videoconference except for cases in which both parties agree to hold an in-person hearing.
- An information sheet by Hastings Prince Edward Public Health determining that face masks are mandatory during “Stage 3” of the re-opening plan which would require all attendees to wear face masks for several hours without the usually available amenities.
- Previous hearings for the case were held by videoconference, giving him the opportunity to closely watch witness testimonies. Switching from videoconferencing and requiring witnesses to testify from metres away and with masks on would “change the playing field mid-way through the arbitration” which should be avoided.
- He did not believe that evidence from either party could not fairly be communicated through videoconferencing.
- He recognized that some participants have underlying medical conditions and/or anxiety.
Morale of this story…
In these trying times, it is the everyone’s responsibility to do their part in stopping the spread of COVID-19. With the technology and creativity available to us, much of our work can be done remotely and safely. Things we might have thought impossible, impractical, and/or inconvenient in 2019 have become the “new normal”.
The decision respects the Public Health Orders and recommendations while also honoring the heightened safety needs of some involved. Arbitrations in most jurisdictions have turned to many more video-conference arbitrations than ever before, with many arbitrators doing their “first-ever” since March.
As leaders in our organizations and communities, we need to remember to not just follow all safety orders and precautions, but also honor the spirit and intent behind them.
If having an in-person hearing is important to your organization, our experience has been to be in front of that and advocate for the hearing to be in-person immediately; many arbitrators are willing to have hearings in person with strict protocols. While safety was rarely a big concern for hearings in the past, adapting to the changes required will help your next hearing go well regardless of whether it is in person, via videoconference or a hybrid of the two.
Original case: https://www.canlii.org/en/on/onla/doc/2020/2020canlii65743/2020canlii65743.html?resultIndex=1
