Are you reading the script?

Tribal employers provide an abundance of due process in the workplace.  As part of that process, tribal employers frequently give employees an opportunity to grieve a wide range of workplace disputes.  Whether grievance hearings are formal or informal, hearing procedures provide the architecture for a balanced process.

If you use hearing procedures in the grievance process, would a script help the grievance panel uniformly deliver a fair and consistent hearing?

A failure to use hearing procedures and a conforming script may turn your hearings into a poorly managed first grade class without the benefit of recess.  We take turns talking during well managed grievances and when grievance hearings are not managed well, there is a conversation free-for-all which minimizes the opportunity to listen to anyone.

An order of presentation in the grievance hearing helps enhance due process by giving all concerned a meaningful opportunity to be heard.  A hearing script can assist the grievance panel in the effective delivery of a fair hearing.  A good script conforms to the specific nuances of the hearing procedures. Therefore the script provided below is a good example but should not be used unless it is consistent with your hearing procedures.

Hearing Script

1. Chairperson calls the hearing in session.

2. Chairperson offers preliminary remarks

This is the matter of John Q. Public.  Through a notice dated January 17, 2005 the ABC Gaming Enterprise provided written notice of today’s grievance hearing.  The purpose of the hearing is to consider Mr. Public’s grievance.  I note that the parties are present.  The ABC Gaming Enterprise is represented by its Food & Beverage Director and Mr. Public is also present.

Wait for on the record audible answers from both parties

Q: Do the parties understand that they have the right to be represented by legal counsel if you choose and at your own expense?

Q: Both parties have chosen not to retain legal counsel, is that true?

Q: Mr. Director are you ready to proceed?

Q: Mr. Public are you ready to proceed?

3. Chairperson explains the general procedure

Option 1: Chairperson describes the role of the Peer Review Panel.   The ABC Gaming Enterprise provides due process to employees through a variety of policies which include the peer review process.  The Peer Review Panel’s goal is to provide a fair hearing, to listen to both sides, and follow the law and policy that was written by the Tribal Council.  The law and policy written by the Tribal Council is found in the Tribe’s Employment Code and the Employee Handbook.  In addition to the law and policy, this hearing will be conducted under the hearing procedures adopted by the Gaming Enterprise.  The employer and the employee are entitled to a copy of the law and the policy.

Please understand that this Peer Review Panel will apply the rules to your case free from political influence, family relationship, or bias.  Through this hearing the Food & Beverage Director and her staff will introduce evidence supporting the employer’s decision.  You may ask questions of the Director’s witnesses and inspect any evidence presented.  After the Director finishes, you will have an opportunity to respond to the Director’s case by telling your side of the story.  You may also offer witnesses and evidence to support your view.  We will rely on the evidence offered in this hearing in deciding the case.  Before the hearing began the Panel had an opportunity to review the Notice sent to you dated _____________.  The Panel has not reviewed any other evidence that may, or may not, be introduced in your case.  Thank you for participating in this process.

The Presiding Officer explains the general process:

Opening statements.   Both parties will be given an opportunity to offer brief opening statements.  An opening statement is a brief statement of your position and the nature of the evidence you will offer.

Employer presents evidence.   An employer representative presents witnesses, documents, video tapes and tangible evidence supporting its position.

Employee presents evidence. Employee presents their evidence.

Employer presents rebuttal evidence. The employer representative may, at their discretion offer evidence rebutting the employee’s evidence.

Employee presents rebuttal evidence. Employee may, at their discretion offer evidence rebutting the employer’s rebuttal evidence.

The parties offer closing statements. The employer representative is given an opportunity to summarize and reinforce its argument.  Thereafter, the employee is given the opportunity to summarize and reinforce their argument.

The evidence is closed. Once the Peer Review Panel has received all of the evidence proffered by the employer and employee, the evidence is closed.  No additional evidence shall be tendered to or accepted by the Panel without permission from the Panel.

The panel deliberates and a written decision is issued and sent to the parties. A written decision of the Panel shall be transmitted by mail to the parties within three days of the close of evidence.

4. Follow order of presentation

a. Employer opening statement;

b. Employee opening statement;

c. Employer presentation;

d. Employee presentation;

e. Employer rebuttal;

f. Employee rebuttal;

g. Employer closing statement;

h. Employee closing statement;

i. Chairperson conclusory statement.

5. Witness oath.  “Do you swear that the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?”

6. Chairperson Conclusory Statement.  This concludes the hearing, the receipt of evidence and the arguments presented by the parties.  The panel will review the evidence and issue a written decision with three days of today’s date.  Both parties have the right to appeal the decision of this panel.  If either or both parties decide to appeal the decision of this panel, an appeal must be presented in writing to the Tribe’s Court Clerk located at 101 Seventh Street South West, Mapleton, PC, 678912.  Thank you for coming today.
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Recommendation:  Provide your employees an opportunity to be heard through a meaningful process which balances everyone’s interests to communicate their side of the story.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.