This is the process developed by the Federal Public Sector Labour Relations and Employment Board (the “Board” or “FPSLREB”) in collaboration with the parties to the Phoenix Pay System Damages Agreement of June 12, 2019 (“2019 damages agreement”)¹ for the accelerated adjudication of grievances under that agreement and for grievances processed pursuant to similar agreements for separate agencies. Further detail on the 2019 damages agreement may be found clickhere for further details on the 2019 damages agreement.

The Oversight Committee established by the signatories of the 2019 damages agreement and separate agencies who have signed on to 2019 damages agreement the (the “parties”) will be responsible for the governance of the parties’ participation in the accelerated adjudication process.

The process set out in this document will only be amended by the Board. Any such amendments would be made following consultation of the parties.

Purpose

The purpose of this document is to:

• Explain the procedure for the accelerated adjudication process for grievances identified under the 2019 damages agreement; and
• Describe the role of the FPSLREB under the accelerated adjudication process.

Date

This process for the accelerated adjudication of grievances identified under the 2019 damages agreement will be in effect from October 17, 2023, and until such a time as it is revoked by the Board Chairperson.

Authorities Stemming from the 2019 Damages Agreement

The 2019 damages agreement provides that grievances for damages resulting from Phoenix pay issues a) filed prior to the date of the 2019 damages agreement coming into force and which have not been resolved and b) grievances filed after the signature of the 2019 damages agreement, are to be processed pursuant to the terms of the 2019 damages agreement.

Mediation

Grievances can be resolved through mutual agreement or mediation at any time in the process, prior to the decision. Complex cases, as determined by the parties, may be subject to mediation to resolve all or some of the matters without a hearing. Any time limits under the accelerated adjudication process are suspended during the mediation process. A mutual request for mediation services should be sent to mdrs-smrd@fpslreb-crtespf.gc.ca for a mediator of the Board to be appointed.

Accelerated Adjudication Process

Pursuant to the 2019 damages agreement, grievances will be adjudicated as follows:

Grievances under paragraphs 21 (a) to (f) of the 2019 damages agreement (please refer to the 2019 damages agreement for the full description of those paragraphs)

Grievances under paragraphs 21 (a) to (f) of the 2019 damages agreement shall be decided on the basis of an agreed statement of facts, including agreed documents, and written submissions. This includes grievances pertaining to:

• (a) Non-speculative investment losses related to Phoenix;
• (b) Non-speculative lost RRSP deferred taxation on missed net pay including severance or pension payments;
• (c) Severance or pension payments: interest on outstanding loans, mortgages, credit cards, or other debt instruments;
• (d) Current employees: documented use of sick and other paid or unpaid leave caused by illness;
• (e) Former employees: paid leave (except sick leave) or unpaid leave caused by illness;
• (f) Interest on delayed severance payments, delayed pension entitlements, missing pay.

The Board retains the discretion to order that a grievance under paragraphs 21 (a) to (f) be subject to an oral hearing. It may make such an order of its own accord or in response to a request by one or both parties.

Grievances under paragraphs 21 (g) to (l) of the 2019 damages agreement

Grievances under paragraphs 21 (g) to (l) of the 2019 damages agreement may be decided by way of an oral hearing, as determined by the Board in the exercise of its discretion. Grievances under these paragraphs include grievances pertaining to:

• (g) Emergency replacement pay or priority pay retroactive to February 2016 (section 17 of Terms and Conditions of Employment);
• (h) Discriminatory practices under Canadian Human Rights Act;
• (i) Lost occupational capacity, lost security clearances, bankruptcy, significant credit rating impact;
• (j) Resignations as a consequence of loss of income leading to financial hardship;
• (k) Mental anguish or trauma which interfered to a profound degree with ability to lead a normal life;
• (l) Other damages in nature of the above for comparable personal hardship or impact.

Description of the Accelerated Adjudication Process

The provisions of the accelerated adjudication process are as follows:

1. The grievor’s bargaining agent is responsible for:
   1. Submitting to the FPSLREB the Notice of Reference to Adjudication of an Individual Grievance form through the E-Filing portal and indicating referral to accelerated adjudication of a Phoenix claim.
   2. When referring the grievance to adjudication, indicating if there is interest in mediation; and
   3. Identifying whether the grievance falls within the paragraphs (a) to (f) or (g) to (l) of the 2019 damages agreement.
2. Parties to a grievance subject to the 2019 damages agreement already referred to the Board at the time of the coming into force of this process must inform the Board whether the grievance falls within the grievances listed at paragraphs (a) to (f) or (g) to (l).
3. The Chairperson of the FPSLREB will assign the matter to a Panel of the Board that may consist of one or three Board Members, as the circumstances warrant. Reference to a “Board Member” herein is deemed to include a Panel of the Board.
4. The assigned Board Member can convene a case management or settlement conference at any time in the accelerated adjudication process prior to decision.

Proceeding by way of evidence and submissions in writing

5. Dates for the filing of evidence (an agreed statement of facts and agreed documents) and submissions will be established by the Board for grievances arising from paragraphs 21 (a) to (f) of the 2019 damages agreement, in consultation with the parties. Dates will also be established for grievances arising from paragraphs (g) to (l) that a Board Member has ordered to proceed in writing.
6. After the date established by the Board for the filing of all submissions (or any revised date, as requested by the parties and ordered by the Board), the time limits for the issuance of a decision will commence.

Proceeding by way of an oral hearing

7. Oral hearings will be conducted by videoconference or in person. Parties to grievance proceeding by way of oral hearing may submit a request with respect to the mode of that hearing.
8. Unless the FPSLREB otherwise determines, in-person hearings will be held in Ottawa.
9. As a general rule, an oral hearing will be scheduled for one day but the Board Member may extend its duration, if circumstances warrant.
10. The parties shall file an Agreed Statement of Facts and relevant documents with the Board at least 3 clear business days before the date of the hearing.
11. As a party to the grievance, a grievor has the right to attend an oral hearing of his or her grievance. If the hearing is in-person, a grievor outside of the National Capital Region will be able to attend by audioconference or videoconference, depending on the available technological resources.
12. After the oral hearing ends, and after the date established by the Board for filing any additional written submissions (if applicable), the time limits for the issuance of a decision will commence.

Principles applicable to both written and oral hearing processes

13. After the Board Member has received final submissions in writing or orally, the Board Member will issue a decision in writing within 40 working days, unless the parties consent to a longer period or if the Board determines that circumstances warrant a longer period.
14. The Board Member’s decision is final and binding on all parties. Decisions decided under the 2019 damages agreement are only to be relied on by the parties in other grievances under the 2019 damages agreement.

Footnotes

Footnote 1

1  The parties to the June 2019 damages agreement are the following: Treasury Board of Canada Secretariat, the Association of Canadian Financial Officers, the Association of Justice Counsel, the Canadian Air Traffic Control Association, UNIFOR Local 5454, the Canadian Association of Professional Employees, the Canadian Federal Pilots Association, the Canadian Merchant Service Guild, the Canadian Military Colleges Faculty Association, the Canadian Union of Public Employees 104, the Federal Government Dockyard Chargehands Association, the Federal Government Dockyard Trades and Labour Council (East), the International Brotherhood of Electrical Workers Local 2228, the Professional Association of Foreign Service Officers, the Professional Institute of the Public Service of Canada, the Union of Canadian Correctional Officers (CSN) and UNIFOR Local 2182.