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SECTION II: Analysis of Program Activities by Strategic Outcome

Strategic Outcome

Fair and impartial resolution of disputes related to internal appointments and lay-offs in the Government of Canada

Program Activity

Adjudication and mediation of complaints filed under the Public Service Employment Act.

Program Activity Description

Pursuant to the new Public Service Employment Act, the mandate of the Public Service Staffing Tribunal is to consider and dispose of complaints stemming from an internal appointment, the implementation of a corrective measure ordered by the Tribunal, the revocation of an appointment or a lay-off. In considering whether a complaint relating to an internal appointment or a lay-off is substantiated, the Tribunal may interpret and apply the Canadian Human Rights Act.

If the Tribunal finds that the complaint is founded, it may order that compensation be paid. The Tribunal may also provide mediation services at any stage of a proceeding in order to resolve a complaint.

2010-11 Financial Resources ($ thousands)

Planned Spending	Total Authorities	Actual Spending
3,884	4,000	3,477

2010-11 Human Resources (FTEs)

Planned	Actual	Difference
30	25	5

Expected Results	Performance Indicators	Targets	Performance Status
Tribunal decisions are timely, sound and well reasoned	Percentage of decisions where reasons are issued within four months of hearing	80%	Not met
	Percentage of Tribunal decisions upheld on judicial review	95%	Exceeded
Optimal utilization of Tribunal’s dispute resolution services by parties	Percentage of mediations resulting in withdrawal of complaint	70%	Exceeded

 

Performance Summary and Analysis of Program Activity

1. Tribunal decisions are timely, sound and well reasoned.

Indicator	Target
Percentage of decisions where reasons are issued within four months of hearing	80%

The Tribunal issues detailed Reasons for Decision following an oral or paper hearing. Letter decisions, which are more concise, are issued to deal with the hundreds of procedural and jurisdictional matters that come before the Tribunal during the year. Letter decisions are usually issued within a few days after the parties have provided their written submissions.

The Tribunal did not meet its target of rendering 80% of its Reasons for Decision within four months of the hearing. However, over 27% of decisions were rendered within the target.

In 2009–10, Reasons for Decision to be issued accumulated as the Tribunal had only two permanent members and only 15% of decisions were rendered within four months. This impacted the results for 2010–11 as the build-up of older decisions still had to be issued. Now, with six trained and experienced permanent members and experienced staff to support those members, the Tribunal is confident that it will be in a position to continue to improve its performance.

Closer monitoring and case management practices, such as reassigning cases between members and settlement conferences, are in place to provide conditions that will assist members in achieving the target.

The Tribunal’s ultimate goal is to render high quality decisions with respect to the complaints it receives within a reasonable time frame. A number of factors can have an impact on whether or not the Tribunal is successful. The increasing number of complex matters and cases dealing with human rights issues typically involve longer hearings and many procedural issues that must be decided prior to a hearing. Because this trend is likely to continue in future years, the Tribunal conducted a pilot project and determined that it should implement settlement conferences to try and resolve complaints where mediation has been declined.

Indicator	Target
Percentage of Tribunal decisions upheld on judicial review	95%

One measure of the quality of decisions is the number of applications for judicial review filed with the Federal Court and, of those, the number where the application is granted. Federal Court decisions are instructive for the parties and the Tribunal even in cases where a judicial review application has been granted and the case is returned to the Tribunal for a new hearing. No decisions were issued by the Federal Court on judicial review applications with respect to cases involving the Tribunal.

In the first case to be appealed to the Federal Court of Appeal (FCA), the Court endorsed the Tribunal’s analysis of abuse of authority. It should be noted that the Attorney General of Canada has sought leave to appeal the FCA decision to the Supreme Court of Canada.

Three applications for judicial review are presently before the Federal Court (FC). None of these cases has been decided by the Court. No other decisions regarding any judicial review applications were rendered by the FC during the year.

A total of five decisions were referred to judicial review out of the 140 final decisions issued. Two of the applications were discontinued. As of March 31, 2011, there are seven applications for judicial review still before the FC awaiting a decision, four of which were filed in previous fiscal years. One of the applications relates only to the corrective action ordered by the Tribunal and not the substance of the decision and is, therefore, not included in the chart below.

See chart below for an overall view of judicial review applications.

Judicial Review Applications

	2007–08	2008–09	2009–10	2010–11	Total
Number of judicial review applications filed	6	5	5	5	21
Applications dismissed or moot	1	2	0	0	3
Applications granted	2	2	1	0	5
Applications discontinued	3	0	2	2	7
Applications pending	0	1	2	3	6
Number of final decisions rendered by Tribunal	157	172	120	140	589
Percentage of decisions upheld	98.7%	98.8%	99.2%	n/a*	99.1%

*No decisions were rendered by the Federal Court in this fiscal year.

2. Optimal utilization of Tribunal’s dispute resolution services by parties

In keeping with the spirit and intent of the Public Service Modernization Act, the Tribunal strives to assist the parties to resolve complaints without having to proceed to a hearing.

Indicators	Targets
Percentage of mediations resulting in withdrawal of complaint	70%

Parties made effective use of the Tribunal’s mediation services during 2010–11 in that the Tribunal’s target was exceeded by 15%. Two hundred and thirty-six (236) mediations were held during the year and, of these, 201 resulted in a withdrawal of the complaint. This represents an 85% settlement rate. This settlement rate is consistent with results from previous years.

In 2010–11, as part of a pilot project, 33% of mediations were conducted either by telephone or by videoconferencing. While the settlement rate of mediations conducted by telephone or videoconference was slightly lower than that of the in-person mediations, the Tribunal has found that it remains an effective method to conduct mediations and will be conducting a minimum of 15% of mediations by those means in the coming year.

As in previous years, the Tribunal offered its two and a half-day Interest-based Negotiation and Mediation Training six times in the different regions of Canada.

Lessons Learned

Consolidation of cases

The Tribunal strives to close 80% of its files within 270 days of receiving the complaint. In order to manage its caseload in an efficient and cost effective way, the Tribunal consolidates cases whenever practical. This case management tool may be used at the request of one of the parties or the Tribunal may decide on its own accord to do so. Examples of consolidation of cases include where a number of complaints deal with the same appointment process, even though the complainants may be different. Another example where cases may be consolidated includes situations where a complainant has filed multiple complaints. In this situation, the complainant is usually filing one complaint at a time and this may take place over several months. If appropriate, the complaints could all be heard during one hearing versus several hearings thus demonstrating sound stewardship and saving Canadians money.

Consolidation has been an excellent tool to manage a large volume of cases and has proved efficient as many cases can be disposed through one hearing process and through issuing Reasons for Decision that address all the issues.

What we have found however in situations where a large number of cases are consolidated is that the overall time it takes to close a file is impacted. Certain timelines must be extended to allow for the consolidated cases to be scheduled for the same hearing. Despite this, the Tribunal will continue to use consolidation of cases as a case management tool as the benefits clearly outweigh the risk of not meeting an internal target of closing 80% of the files within 270 days.

Pilot projects

Phone and Videoconference Pilot Project

This pilot project was implemented in an effort to offer increased mediation availability and to maintain the cost of providing mediation services at current levels for the parties and the Tribunal. Even before the start of this pilot project, this approach had been successfully used when complainants were working out of the country or where the parties were unavailable to attend, in a timely manner, mediation in person.

During the pilot project year, the satisfaction rates compiled from the participants’ questionnaires indicate high satisfaction rates of over 80% for all type of mediations. Furthermore, the pilot project allowed significant savings in terms of time spent and travel costs for bargaining agents, departments and the Tribunal together with optimal employee well-being and work-life balance (time at the office and at home vs. time on the road) for all those involved.

Some parties or representatives have expressed a preference for in-person mediation. For the coming year the Tribunal plans to reduce the percentage of phone mediations and add the possibility of doing the pre-mediations by phone (one day) and the mediation in person (one day). This will allow increased flexibility on the part of everyone with respect to the choice of phone, videoconference or in-person mediation.

Settlement Conference Pilot Project

As this process was new to the parties, the Tribunal found it important to introduce it as a pilot project. This approach enabled more flexibility to modify and fine tune the proposed model in response to comments made by parties after participating in settlement conferences and the experience of members chairing them. The Tribunal’s Stakeholder Group was also consulted at different stages of the pilot project and its comments proved to be most valuable in refining the process.

As planned, the pilot project was evaluated and the statistics for the period of April 1, 2010 to March 31, 2011 showed a settlement rate of 80%. Given these results and the positive comments received from participants the Tribunal concluded that the settlement conferences would become a permanent part of the Tribunal’s complaint process. More members were trained and are now involved in this new process. Documentation and the website were reviewed to simplify the process and reflect the changes made along the way.

The Tribunal is confident that holding settlement conferences complements its complaint process. This gives the parties an opportunity to directly discuss the complaint, which they would not have within the context of a quasi-judicial hearing. It is efficient as it is combined with the pre hearing conference and done within a day and without involving travel. It also provides value for the parties involved even if the complaint does not settle, as it provides them with an evaluation of the strengths and weaknesses of their case and better prepares them to address issues raised by the complaint at the hearing should the matter not settle.

Experience demonstrates that settlement of a complaint when possible is a preferable outcome for the parties. Moreover, a settlement is less disruptive for the persons involved in a hearing especially where the complaint originates in the workplace. Settlement also brings significant financial savings for the parties in terms of preparation time, representation and travel costs. Similar savings are realized by the Tribunal for its members and in preparing and issuing its decision.

Timeliness of decisions

The Tribunal places a high premium on the timeliness of its decisions. This advances both the interests of the Tribunal’s immediate stakeholders as well as all Canadians. Setting timelines is also important given the nature of staffing issues and the impact of those issues to the parties.

The Tribunal has taken many steps to ensure that its decisions are rendered in a timely manner and has observed progress in the last year. It has refined its systems throughout its operations and engages its operational staff on the importance of timeliness. For example, it facilitated a workshop for the members who issue the decisions on how the Tribunal could better attain its strategic goals regarding timeliness in the issuance of decisions. This discussion also led to knowledge sharing, knowledge transfer and a consensus on what is being done well, and what other strategies might assist the Tribunal in issuing decisions more quickly. As a result, in the next fiscal year, the Tribunal will explore the possibility of expedited hearings in certain cases that come before it.

There are many ongoing lessons learned in this area. For example, it is clear that the Tribunal must balance many priorities in ensuring timeliness and quality of decisions, as well as the independence of the decision-making process. At the same time, the decision must also reflect sound reasoning. A rapidly issued decision that is not based on sound reasoning does not serve the Tribunal’s stakeholders. Therefore, if the decision-making process requires additional time to ensure quality, this is a value added to the complaint process. In addition, in a quasi-judicial process, it is essential that the independence of the member who makes the decision is protected throughout the process. With this as a focus, the Tribunal must continue to engage its members and staff in an examination of how to issue decisions more quickly. These discussions can ensure constructive knowledge transfer and greater efficiency in all aspects of the work of the Tribunal. Consequently, the Tribunal can minimize the risks associated with delayed decisions, or conversely, associated with decisions that are rushed and not of a high quality.

Internal Services

Program Activity Description

Internal Services are groups of related activities and resources that are administered to support the needs of programs and other corporate obligations of an organization. These groups are: Management and Oversight Services; Communications Services; Legal Services; Human Resources Management Services; Financial Management Services; Information Management Services; Information Technology Services; Real Property Services; Materiel Services; Acquisition Services; and Travel and Other Administrative Services. Internal Services include only those activities and resources that apply across an organization and not to those provided specifically to a program.

2010–11 Financial Resources ($ thousands)

Planned Spending	Total Authorities	Actual Spending
1,579	1,598	1,270

2010–11 Human Resources (FTEs)

Planned	Actual	Difference
9	9	0

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