- Adjournment
- Hearing (attendance of worker)
- Hearing (conduct of hearing)
On the day of the hearing, the Panel, the employer and their representative, and the worker's representative, appeared via videoconference. The worker appeared via teleconference. The Panel determined that the hearing could not continue if the worker could not testify via videoconference, and adjourned the hearing pending the worker's ability to participate via videoconference.
Practice Direction #5, "Hearing Formats", outlines that parties may object to the assigned hearing format by advising the Tribunal and making submissions as to why their preferred format would be more appropriate. Generally, these objections are considered by the Tribunal's Vice-Chair Registrar (prior to the hearing being scheduled), or the Vice-Chair or Panel (after the hearing has been scheduled).The inclusion of teleconference information in the Hearing Letter permits parties to participate via teleconference only, without advance notice to the Tribunal or to the other parties. However, theTribunal makes the teleconference-specific information available so that parties may contact the Tribunal if they are unexpectedly unable to participate via videoconference on the day of the hearing (see Decision No. 1066/20I).The current instance was not an unexpected circumstance or situation that warranted an exception to the Tribunal's usual practice and procedures. The worker stated that her discomfort with prolonged screen use was a continuing and long-standing symptom. There was no record of the worker's representative advising the Tribunal that the worker would have difficulties with a videoconference. Likewise, there was no indication on file that the worker lacked sufficient internet access to participate via videoconference. The worker's representative had months in which to prepare for the hearing, including ascertaining whether the worker would have any physical or technical difficulties with the chosen hearing format, and contacting the Tribunal to make alternative arrangements if necessary. Furthermore, allowing the worker to proceed via teleconference at the scheduled hearing would have been a breach of natural justice for the employer. While videoconference is not necessarily required in all circumstances, the circumstances in the current appeal warranted a videoconference, in part due to the presence of electronic evidence directly relevant to the worker's appeal. The employer had the right to show portions of the relevant video(s) during the worker's testimony, and elicit her response. The employer had also expected the hearing to proceed via videoconference. The fact that he would have been unable to do so, without advance warning, would have deprived the employer of the opportunity for a full and fair hearing.The worker's representative had been made aware of the worker's difficulties prior to the night before the scheduled hearing, and he could have prepared for the worker to meet him at his office, or another suitable location, where videoconferencing facilities were available. As per Section 5.5 of Practice Direction #23, "Adjournments and Withdrawals", the worker's representative did not make reasonable efforts to ensure that the worker would be able to participate in the scheduled videoconference hearing. Lastly, the prejudice to the employer that could come from proceeding with the hearing without the ability to show the electronic evidence outweighed the prejudice to the worker stemming from a delay in the proceedings.