Accelerated adjudication under the 2020 damages agreement

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On June 24th, 2024, an accelerated adjudication process was launched for current and former employees covered under the Phoenix pay system 2020 damages agreement.

The Public Service Alliance of Canada (PSAC) and the Treasury Board of Canada Secretariat (TBS) negotiated a recourse mechanism to resolve disputes following the denial of claims for severe impacts.

For employees covered by the 2019 Phoenix Damages Agreement, a 2019 accelerated adjudication process is available.

Severe impacts claims

Assessment of a claim

There are 12 different types of claims for severe impacts under which a current or former employee could request damages.

Here are the steps involved in the assessment of a claim up to the point where it is referred to the Federal Public Sector Labour Relations and Employment Board (FPSLREB) :

  1. A current or former employee files a claim with the Phoenix Claims Office for damages for severe impacts. The application form may include claims respecting one or more of the severe impacts listed in clause 24 a) to l) of the 2020 damages agreement.
  2. The Phoenix Claims Office assesses the claim, may contact the current or former employee and the employee’s organization for additional information.
  3. The Phoenix Claims Office issues a decision letter to the current or former employee. The decision letter includes a detailed rationale (decision) for each type of claim submitted on the application form.

Phoenix Claims Office decision

Receiving the decision

Claims that are approved, in full or in part, will include a release form, attached to the decision letter which the claimant must complete and return to the Phoenix Claims Office within 90 calendar days to receive payment.

A current or former employee can contact the Phoenix Claims Office with any questions about the decision letter.

Satisfied with a decision

If a current or former employee is satisfied with the decision from the Board as a whole, they sign the release form and return it to the Phoenix Claims Office. Payment is then issued by the employee’s organization.

If a current or former employee has a grievance related to the claim, and there is no outstanding matter relating to the grievance (nature and corrective measures requested), they should contact their bargaining agent to withdraw their grievance. The bargaining agent will then communicate with the employee’s department, or the FPSLREB, as applicable, to advise that the grievance has been withdrawn.

Partially satisfied with a decision

If a current or former employee is partially satisfied with the decision, they can sign the release form with the satisfied claims made under 24 a) to l). Payment on the agreed claims is then issued by the employee’s organization. They also may decide to contest the parts of the decision that are unsatisfactory to PSAC.

Unsatisfied with a decision

If a current or former employee is not satisfied with any of the decisions made on the claims submitted under clause 24 a) to l) they do not have to sign or return anything. In such a case, the current or former employee may decide to contest the decision.

Contesting the decision

A current or former employee who disagrees with a severe impact claim decision, in full or in part, may grieve it and may pursue the matter with the FPSLREB by way of accelerated adjudication, mediation, or formal adjudication.

How to contest a claim decision

To grieve the claim decision, the current or former employee should contact the PSAC to discuss the available options. Only the bargaining agent, that is, PSAC, can refer a claim to the FPSLREB.

If the bargaining agent and the employee refer a claim decision to adjudication, the bargaining agent sends a notice of referral to the FPSLREB.

If the decision letter includes decisions on more than one type of claim, the bargaining agent will identify on the referral form which decisions the employee is contesting.

Only the denied portions of a claim may be grieved

Clause 27 of the 2020 damages agreement indicates that only the denied portions of a claim may be grieved.

Timeline to refer a denied claim decision to accelerated adjudication

To ensure the referral is timely, employees who receive claims decision letters are encouraged to consult their bargaining agent as soon as possible if they wish to have them refer the decision to the FPSLREB.

Referring Phoenix-pay grievances related to the claim

The bargaining agent may also refer a current or former employee’s Phoenix-pay grievance related to the contested claim to accelerated adjudication along with the contested claim decision(s). On a case-by-case basis, the FPSLREB will review and may decide to address the matters related to the Phoenix-pay grievance and claim jointly.

Adjudication (accelerated and formal)

Adjudication consists of having a third party (an adjudicator, officially known as a panel) from the FPSLREB adjudicate the claim.

Accelerated adjudication

Accelerated adjudication is a shortened hearing (typically one day), where both parties have agreed on a statement of facts, with the opportunity to receive the adjudicator’s decision within 40 working days.

Formal adjudication

Formal adjudication may be used in situations where the legal issues are complex, some facts are disputed and additional witness evidence is needed, thus necessitating a longer hearing. A number of months can take place before a decision is rendered and sent to the parties.

Process for adjudication before the FPSLREB

Initiating the adjudication process

Following receipt of the notice of referral from the bargaining agent, the FPSLREB sends the employer (TBS and the employee’s organization), the bargaining agent and the current or former employee an acknowledgment of the notice of referral to adjudication.

Mediation (optional)

Mediation is a voluntary and confidential process, and without prejudice to the adjudication process if no agreement is reached.

If the bargaining agent and the employer (TBS and the employee’s organization) agree to mediation, a mediator sets mediation dates in consultation with TBS, the current or former employee’s organization, and the bargaining agent.
Here are the steps in the mediation process:

  1. The parties attempt to reach an agreement to resolve the grievance respecting the claim decision and, if applicable, the grievance respecting the related pay issue.
  2. Corrective measures are negotiated, if applicable.
  3. The parties sign an agreement if one is reached.
  4. Where a settlement agreement is reached, the parties are required to implement it in accordance with the agreed upon terms.
  5. Grievance(s) is (are) withdrawn if a settlement is reached and the agreed terms have been implemented.

If a mediation does not result in an agreement, the matter(s) may proceed to accelerated or formal adjudication.

Accelerated adjudication

The accelerated adjudication process is administered by the FPSLREB who offer a procedural guide for the Accelerated Adjudication Process. The guide applies to all parties subject to the process. As such, the employer (TBS and employee’s organization,) the bargaining agent and the employee are encouraged to familiarize themselves with its contents.

For files that proceed to accelerated adjudication, the FPSLREB notifies TBS, the employee’s organization, and the bargaining agent of the timelines for written submissions or an oral hearing.

Once the final submissions in writing or orally are submitted, the FPSLREB renders a decision. Where corrective measures are granted by the FPSLREB, the appropriate party is expected to implement in accordance with the order.

Formal adjudication

Grievances that proceed to formal adjudication follow the FPSLREB’s usual adjudication procedures.

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