The Public Service Staffing Tribunal (PSST) – A new body takes the lead in settling disagreements
Appeal tribunals, considered slow and complex and widely criticized, are now being replaced by the Public Service Staffing Tribunal, an independent, quasi-judicial body created to handle complaints concerning internal appointments to the federal civil service.
This changing of the guard was brought about under the Public Service Modernization Act (PSMA) and strengthened by the Public Service Employment Act (PSEA) and implies a new approach to resolving disagreements. Communication, mediation and dialogue are now the watchwords associated with the process, promising a more rapid resolution. The new mechanism can seem disconcerting for anyone who might become caught up in it. In fact, the consequences of a PSST process are not to be taken lightly, and that is why a good understanding is required before becoming involved.
As mentioned previously, the PSST’s primary mandate is to deal with all complaints arising from the federal public service’s internal appointment and lay-off process. In this regard, the Public Service Staffing Tribunal Regulation lays out the procedure by which it can efficiently fulfill its function and defines the steps to be followed in dealing with a complaint. While several steps are involved, three (3) are particularly important. They are communicating of information between the parties involved, the response to the complainant’s allegations, and the hearing.
Communication of information between those involved in the dispute, is an initial phase and precedes the complainant’s allegations. This step consists of transmitting the information the complainant will be using in formulating his allegations and, by so doing, directing the complaint to specific motives. Two (2) concepts should be strategically applied at this stage. Out of respect for one of the Public Service Commission’s fundamental values, it is necessary to demonstrate openness and transparency. At the same time, communicating information that could needlessly damage the proceeding’s soundness must be avoided. It has often happened that this step is not given due consideration and incomplete, confidential or irrelevant information has been communicated to complainants, with the effect of making the disagreement more acrimonious. This lack of attention, occasioned by the lack of consultants who specialize in the area of disagreement, have shown how important it is for the parties involved to receive sufficient support in completing this phase.
Following communication of information, the complainant draws up his allegations, that is, the motives he attributes to justify the soundness of the outcome he is seeking. Unless there is other notice, the allegations constitute the core of the process. In my experience, the respondent’s answer to the allegations is the most critical step, for several reasons. For one thing, many advantages are to be gained from a response backed up by documentary evidence, legislation and jurisprudence. Among these advantages are the possibilities that the complaint would be withdrawn by the complainant or that the PSST would excuse the parties from a hearing and render a decision on the basis of written responses, a process commonly known as “hearing by file”. In summary, with the support of a professional who specializes in the field, the respondent can be sure that his response to the allegations will rest on credible and convincing evidence.
The hearing is the final and decisive step. Appearing before the PSST is not a simple matter. While the burden of proof rests with the complainant, the respondent should have a strategy in place to thoroughly explain, comment on and argue the complainant’s points. Such a strategy also involves choosing credible witnesses who are able to communicate their knowledge and expertise effectively regarding the specific aspects of the complaint in question. Nonetheless, a witness’s credibility does not guarantee success. In my experience, it is never pleasant to see a witness defeated for lack of preparation. In this kind of exercise, credibility is important but preparation is not to be neglected. Everything again comes back to expertise and experience. Although representation at the tribunal is the responsibility of a lawyer, proper preparation calls for the opinion of an expert on the content, an expert who would be able to support the “respondent” organization, on the one hand, and, on the other, the lawyer handling the case. Combining the strengths of these two participants produces much more satisfactory results. This stage is followed by a period of waiting to hear the PSST’s decision.
To be noted is that a parallel process exists, whereby the PSST suggests mediation, to which both parties in litigation must agree before it can begin. That said the process, which is based on the good faith of both parties, is an efficient way to resolve disagreements. Led by a PSST mediator, it allows the parties to discuss not only the complaint itself, but also alternative measures that might satisfy the complainant and lead to the complaint being withdrawn. This alternative might at first seem simplistic, but it is increasingly favoured by the legal community and deserves consideration when it becomes necessary to resolve a disagreement. Once again, external expertise makes it possible both to develop an effective mediation strategy and to propose new solutions that might satisfy the two parties. As the saying goes, “The worst agreement is sometimes better than the best judgement.” Both parties to a mediated resolution feel that they have won, and their mutual animosity is thus neutralized. What’s more, this process can be very quick, and if properly conducted, can reduce the stress factor for the individuals involved.
In conclusion, although external expertise and experience can greatly abet the resolution of a complaint to the PSST, it must be said that an appointment process that has been properly designed and conducted can eliminate getting caught up in that whirlpool. Experience and expertise should be taken advantage of when the appointment strategy is being formulated. Furthermore, a well-articulated strategy grounded in the PSC’s values and guidelines, thoroughly developed assessment tools, and wisely dispensed advice will prevent a lot of headaches for the individuals involved.
Meaning that, in staffing as in all else; an ounce of prevention is worth a pound of cure.
By Nicolas Roy
