On Sept. 16, 1995, the CAUT Academic Freedom and Tenure Committee (the "CAUT AF&T Committee") considered a recommendation from Don Savage, Executive Director of CAUT, that a Committee of Inquiry be established to investigate Professor Westhues' complaint that he had been treated unfairly by the Chair of his Department, two internal University committees, and the University of Waterloo ("UW") administration. After long debate, the committee instead decided to prepare its own report from the documentation on hand. In coming to this decision, the committee was influenced by the consideration that it was unlikely that any new information would emerge to inform the work of a Committee of Inquiry, given the vast amount of material already available. Moreover, it seemed likely that a Committee of Inquiry would itself take considerable time to conclude its investigations -- extending the already protracted period of time that had been consumed in this matter -- and that the process would involve the many parties to the dispute in time-consuming and distressing, but ultimately redundant repetitions of the claims and counter claims, defences and rebuttals which were amply evidenced in the growing files of the committee.

The AF&T Committee's investigations are complaint driven; the scope of any inquiries by the Committee is defined by matters raised by the complainant. Thus, this report presents only the results of an investigation of whether or not Professor Westhues was treated fairly in the course of disciplinary actions taken against him at the University of Waterloo.

The Academic Freedom and Tenure Committee believes that disputes of the kind described in this report are best resolved through a fair internal grievance procedure, through an agreed upon process of binding arbitration, or by mediation between the parties. For various reasons, none of these processes was followed at UW in this case. We have tried to write a balanced account of the dispute, but our report must be seen as a poor substitute for the fair and binding resolution procedures found in most Canadian universities, and so strikingly absent at UW.

In writing this report, we have not referred to or employed any of the oral evidence given to the fact-finding committee which visited Waterloo in Feb. 22-23, 1995, nor to the report itself. Those who spoke to the fact-finding committee were given the assurance that their comments were not for public distribution, and that the report of the fact-finding committee was intended solely for the information of the CAUT AF&T Committee.

After the various parties to this dispute were informed of the CAUT AF&T Committee's intention to write its own report, Professor Adie Nelson wrote to express concern that her views might very well be overlooked, since she had not submitted anything in writing to the committee. Professor Nelson enclosed several documents for the information of the committee. Except for her covering letter and one other document, all of the items she enclosed had previously been seen by the CAUT AF&T Committee, and had found their way in due course into its collection. Nelson's additional documentation was included in the file and considered in preparing this report.

Unless it is absolutely necessary to an understanding of the case, we have avoided identifying anyone in this report except the principal parties in the dispute and those officers of the faculty association and the UW administration who have played a direct role in this affair.

This report is divided into the following sections:

I. The Framework for the Resolution of Disputes at the University of Waterloo: Policy 33 (Ethical Behaviour) and Policy 63 (Faculty Grievances)

II. The Important Events Surrounding Professor Westhues' Complaint

III. Commentary

IV. Recommendations

V. Notes

Necessarily, given the sheer mass of the material in the file, this account of the affair is compressed in a way that some are bound to feel neglects important issues and events. The Committee apologizes in advance to those who feel that their concerns have not been sufficiently addressed.

I. The Framework for the Resolution of Disputes at the University of Waterloo: Policy 33 (Ethical Behaviour) and Policy 63 (Faculty Grievances)

It is critical to an understanding of this case to appreciate that discipline and faculty grievances are managed at the University of Waterloo using procedures that seem to be unique in Canadian universities. Provisions that many are accustomed to seeing in their collective agreements with respect to discipline and grievances are strikingly absent at UW. Instead, these matters are dealt with under two policies established by the Senate, both of which have proven to be problematic in the present case and in other disputes. None of this should be news to the faculty or administration at UW. At the request of the faculty association (FAUW) in 1984, CAUT established a two-person task force to review the various policies affecting faculty at UW. That report1 was sharply critical of the procedures in place at UW and made a number of recommendations for improved policies and practices. A review of UW's revised policies2 in 1990 noted significant improvements but again pointed out serious deficiencies in the procedures in place. As will become obvious from a consideration of the present case, Policy 33 and Policy 63 are still so severely flawed that they serve as very real impediments to the fair resolution of grievances.

Policy 33 (Ethical Behaviour)

This policy (approved Jun. 5, 1990) aims to promote "an environment of tolerance and respect" in which the "right of individuals to advance their views openly" is supported throughout the university. The policy appears to apply to everybody -- students, faculty, staff, and administrators.

Several general principles are enunciated: the responsibility of members of the university community to contribute to a just and supportive community based on equality and respect for individual differences; support for the responsible and ethical exercise of academic freedom; the principle that there should not be undue interference in the study, work or working environment of other members of the university; the principle that all the benefits and services of the university should be available to those qualified without regard to personal characteristics or beliefs; and the view that supervisory authority should be used only to promote the proper purposes of the university. Without limiting the generality of these principles, the policy specifically incorporates definitions of sexual harassment, discrimination, and the abuse of supervisory authority.

Policy 33 establishes an Ethics Committee, advisory to the Vice-President Academic & Provost (the "VPA"). The Committee consists of six members -- two students, two staff and two faculty. The VPA & Provost determines who acts as chair. In addition to its aims of promoting education, training, reviews of policy, and so on, the Ethics Committee has the task of dealing with specific complaints.

The chair or individual committee members can give advice or assist individuals informally in the resolution of their complaints and can also advise complainants of other means of resolving their disputes through other avenues of appeal. Informal attempts at resolving complaints can be terminated after reasonable time and effort if the committee member giving advice or assistance believes that the complaint is frivolous, if informal resolution is "inappropriate," or if one of the parties to the complaint refuses such resolution.

The formal process is initiated upon the receipt by the chair of a written complaint setting out the alleged violation of the policy, the remedy sought and the names of the respondents. Respondents are duly informed and given a copy of the complaint. A three-person Hearing Committee is established (the policy doesn't say quite how) to review the complaint, to establish jurisdiction, and to meet with the principals. Both at the informal and formal stages there can be discussions with, e.g. the chair of the Faculty Grievance Panel established under Policy 63 (see below) to work out questions of jurisdiction. The specific procedures to be followed in reviewing the complaint are left in the hands of the Hearing Committee, but it is supposed to consult with the parties about that procedure and to observe the principles of natural justice. Specifically, the committee has to permit each of the principals to be accompanied by another member of the university community as an advisor or representative; it has to allow each principal access to relevant evidence; it has to allow principals the opportunity to present evidence and argument and to rebut contrary evidence and argument. It was once the case, we are told, that the committee used to hear serial, independent testimony from those appearing at a hearing, with no opportunity for cross-examination, but it now permits cross-examination.

At the conclusion of its deliberations, the Hearing Committee delivers a formal report to the VPA & Provost and to each of the principals. This report contains a recommendation for the appropriate disposition of the complaint, indicating the nature and relevant circumstances of the complaint, in what ways the principles in the policy have been violated, and the specific remedies the Committee proposes. The Committee can recommend that disciplinary action be initiated, in which case the report of the committee can be adduced as evidence in that action.

The VPA & Provost determines whether he/she accepts the recommendation, implements the recommendation if he/she agrees with it, and informs the parties of the action taken in response to the committee's recommendations.

Within three weeks of receipt of the report of the Ethics Hearing Committee, a formal written appeal can be made to the President of the University, who is supposed to meet as soon as possible with the two parties concerned. Within a week thereafter, the President is supposed to issue a written reply to the appeal to the parties involved and to the Hearing Committee.

Policy 63 (Faculty Grievances)

This policy (approved on Jun. 4, 1985) is meant to provide "appropriate remedies for situations in which a faculty member has been treated in violation of policies or established practices, or, in some substantive sense has been treated differently from others in his/her situation." Who is a faculty member is defined -- and there are some academics at UW who are not incorporated in the definition. There are also many exclusions in the kinds of disputes that can be grieved under this policy: promotion and tenure disputes (unless the relevant policy or procedure has been violated), other matters covered by non-administrative appeal procedures including student discipline, dismissal for cause, animal or human research, parking, adjustments to salary scale -- and ethical behaviour. This last area falls under the jurisdiction of the Ethics Committee operating under Policy 33.

Under Policy 63, a Faculty Grievance Panel composed of a chair and six faculty members is established by agreement of the presidents of the university and of the faculty association. After a grievance has been submitted to the chair, two members of the panel are appointed to act as Grievance Counsellors for the case. The task of the Grievance Counsellors is to attempt to work out an informal resolution of the grievance or complaint before there is recourse to a formal hearing.

If the dispute is not resolved informally, the grievor files a written grievance, a Hearing Committee is established (consisting of the chair of the Grievance Panel and two other members of the panel drawn by lot). The Hearing Committee is charged with deciding at the outset whether the grievance falls within the policy or whether the grievor has a case. If it declines the case, the Hearing Committee notifies the grievor in writing.

The Hearing Committee is charged with making a complete investigation of the petitioner's grievance and with arriving at a unanimous judgement.

According to the published policy, the Hearing Committee conducts its hearings informally but in camera and "with regard for principles of natural justice." It determines its own procedures, except that at all hearings the grievor is entitled to be accompanied by a faculty colleague; the formal process is one of independent, serial testimony (which rules out the presentation of information by agents, such as grievance officers or legal counsel, and eliminates cross-examination); and there are to be no minority reports issued.

When it arrives at a decision, the Hearing Committee issues a preliminary confidential report to the grievor and to the President. The purpose of the preliminary report is for the Committee to comment on the validity of the grievance, on the remedy requested by the grievor and on what the Hearing Committee is proposing, and to allow the President and the grievor to respond to the proposed remedy. After receiving the written comments of the President and the grievor, the Hearing Committee then considers whether to adjust the proposed remedy, and it prepares a final report. The final report then goes to the President and the grievor. The President is responsible for implementing the decision.

There is some background documentation to the policy itself, which informs the policy but is not actually incorporated in it. In this material, it is stated that the grievance procedure "is concerned with unreasonable or unfair administrative practice" (though the policy itself doesn't actually include these as grounds for a grievance); there is a heavy emphasis on the importance of the informal stages of the process -- with the suggestion that the Grievance Counsellors should pursue informal discussions of the grievance up through the administrative chain in a quest for a resolution of the dispute; and the approach is seen to be one in which the Hearing Committee makes a "decision," as opposed to a "recommendation."

We are struck, throughout, by the emphasis on collegiality. The model itself is "viewed as a more visible form of collegiality" than relying on a formal review of grievances through administrative channels. There is concern about preserving and maintaining a collegial atmosphere in the university, encouraging reasonable behaviour, using remedial and non-punitive approaches, providing for impartial assistance with resolving disputes, and so on. The whole theme of the policy is that relying on reasonable, sincere and disinterested colleagues should provide ways of dealing with disputes using informal procedures and non-adversarial approaches.

Comments

There are a number of things wrong with these policies.

First of all, they seem to be based on the supposition that it is possible to decide if a complaint or grievance involves ethical or non-ethical components, and on the basis of this determination to send the complaint off to separate committees who have special charge of "ethics" issues and "non-ethics" issues respectively. On the face of it, such a division looks problematic, and in practice, as will become abundantly clear in the present case, the problem of jurisdiction and the need to dice and slice a complaint into its ethical and non-ethical parts is a very real impediment to the resolution of conflicts. (Besides being noted in both reviews of the policies by CAUT, this criticism has more recently been made in an internal UW review of the policies in question3.)

It has become the practice, we understand, for the two committees to hold joint hearings, but there are no formal written guidelines that say how this is to be done. It does seem that the agreement of all the parties to a dispute has to be obtained before a joint hearing can be arranged, but this is not reflected in the published policies. Even if it were properly encoded in the written policies, requiring that the parties agree to a joint tribunal introduces the possibility that a fair procedure could be blocked by one side or the other for some supposed advantage. This does not seem fair or reasonable.

Secondly, each committee is left to develop its own procedures in each case, with little guidance from the Policies. While there is the requirement that the committees be guided by the principles of natural justice and observe certain basic procedural rules, nevertheless in our view there are very real dangers in requiring people to develop ad hoc procedures in the middle of complex and emotion-laden disputes. Even reasonable, fair-minded, and intelligent people can do the strangest things when they or their colleagues are in turmoil, and the most well-intentioned actions (actions that seemed reasonable at the time) can turn out in retrospect to have been muddled, wrong-headed and unfair. That is why collective agreements at other Canadian universities take such care to specify the exact steps that are to be taken in the resolution of grievances, and it is why those procedures are guided by the body of legislation and arbitral jurisprudence that has arisen on these matters. Paradoxically, the policy at UW that deals with student appeals provides for the application of the procedural standards of Ontario's Statutory Powers Procedure Act -- but these procedural safeguards do not apply to proceedings under Policies 33 or 63, even though proceedings under these latter policies can have extremely serious consequences for the careers of those individuals affected by them. We are unable to see any reasons to justify the University's failure to provide faculty grievors with the same level of procedural protection afforded student grievors.

Thirdly, there are significant restrictions on a complainant's right to counsel. In the Faculty Grievance procedure the complainant can be assisted by a "faculty colleague"; in the Ethics procedure, by an "advisor or representative." The roles of these persons are very unclear, and it is also quite unclear what rights parties have to seek advice. In the present case, we shall see how this lack of clarity served to frustrate the process. From a natural justice perspective, it is very problematic that an appeal body reviewing a serious disciplinary matter can restrict a party's right to use whatever assistance and advice that person deems necessary.

Fourthly, there is great confusion with respect to appeals and how a final decision is arrived at. In the Faculty Grievance policy, a report goes to the President and the grievor, who can comment on the report and the proposed remedies. The policy is imprecise about what happens if the President does not accept the decision of the Grievance Committee, and there do not appear to be any provisions for the grievor to appeal the decision and subsequent actions of the President. The policy itself says it is the responsibility of the President to "implement the decision" of the Hearing Committee, but a recent Provost's Committee says that "faculty grievance hearing committees make recommendations to the President of the University,"4 and in the present case, a letter from the President James Downey to Professor Westhues seemed to imply that the grievance could be sent back for a consideration by a new Hearing Committee after the Faculty Grievance Hearing Committee that dealt with the grievance had already reported its "decision."5

In Policy 33, the Ethics Committee is advisory to the VPA & Provost, and the report of the Ethics Committee goes to that officer, but any appeal is to the President. One wonders what happens if the Committee's recommendation, the VPA's recommendation, or the President's decision on appeal is unsatisfactory to the grievor. While a Policy 33 grievor at UW has the right of appeal to the President of the University, there is no provision for final, independent resolution of disputes if the grievor finds the President's response to his or her appeal unsatisfactory. Equally troubling is the fact that Policy 33 does not appear to specify on what grounds the President must exercise his or her discretion to deny or uphold an appeal. Nor does Policy 33 specify any due-process safeguards in the event of an appeal to the President. The Savage & Mullan report recommended that "the decisions of the tribunal should be final and binding themselves or, as at Queen's University, they should be subject to final and binding arbitration...." (p. 45). That UW continues to sidestep the clear need for a mechanism for the unambiguous and definitive resolution of grievances is simply unacceptable and should be a matter of acute embarrassment to the University. There is nothing in the unique culture of the University of Waterloo that justifies its failure to establish the fair procedures for the resolution of grievances that have found acceptance in the vast majority of Canadian universities, unionized and non-unionized alike.

All of these deficiencies (and others) have been brought to the attention of the faculty and administration at Waterloo on previous occasions. Now again, as we shall see, a case has arisen that demonstrates how far these policies have failed to provide proper and fair procedures for the redress of a grievance -- with significant damage to the careers and reputations of a number of parties involved, wittingly or unwittingly, in the dispute, and to the reputation of the University of Waterloo itself.

II. The important events surrounding Professor Westhues' Complaint - 1993

On Nov. 11, 1993, an oral comprehensive methods examination was held in the Department of Sociology at UW to examine a Ph.D. student under the supervision of Professor Westhues. This was the student's second attempt at the examination, and it is important to an understanding of the case that some background be provided about the first examination.

Two years previously, the student had attempted a written comprehensive methods examination and had been failed by a three-person departmental committee. Some time after having been told of his failure, the student complained that an article that was supposed to have accompanied one of the questions on the examination had not been provided to him, even after he had twice asked a secretary in the department about it. Rather than make a fuss about the missing article, the student attempted an alternate question -- a question that he and Professor Westhues maintain was badly worded -- and failed the examination. Westhues and the student contested the failure on the grounds of this irregularity, and a great deal of discussion ensued in the department and at the faculty level about what, if anything, could be done. These were not easy negotiations. Professor Westhues and the student argued that the student ought to have been exempted from the examination on the grounds that he already had a doctorate and had written and edited several books, thus demonstrating his competence in sociological methods. His colleagues in the department insisted that this amounted to ad hoc special pleading, and that the student should be required to meet the same tests as others in the program. Eventually, it was decided that the student's failure would stand, but that he would be given an opportunity for an oral examination, and that for the next examination, one of the examiners would be an academic from outside the department (referred to in the relevant correspondence as an "adjunct professor," and hereinafter referred to as the "adjunct examiner"), who had been nominated by the student and who was acceptable to the department.

There was some to-ing and fro-ing on the selection of the adjunct examiner but finally an examiner satisfactory to the student was selected. Later, both Professor Westhues and the chair of the examination committee, Professor Adie Nelson, reported that the student had told each of them that the student was very pleased by the selection of the adjunct examiner. Not only did the person named share the same qualitative methodological approach favoured by the student, but the student further (apparently) believed that the adjunct professor was a person who once favoured his candidacy in a job competition at another university. That Westhues and the student were also pleased with the selection of Professor Nelson as chair a member of the examination committee also appears to be a matter of record; Professor Westhues is reported to have asked her to serve on the committee "as a favour to him" if she were asked by the department; he notes in his Feb. 18, 1994 statement of grievances that he "had encouraged (the student) in his choice of Nelson for the committee." The student reportedly told Nelson just before the examination that she had been his "first choice" for the committee. The third member of the committee named by the department doesn't seem to have attracted much in the way of comment.

On the day of the oral, the student did not seem to be especially worried about the examination. The examination itself seemed to go fairly uneventfully. Three hours later, at its conclusion, when he was asked by one of the examiners, the student stated that the examination had been fair. He then reported to Westhues that he thought the examination had gone well, the questions had seemed fair and he thought he had answered them well. Westhues went off to a meeting and the student returned to the examination room to hear the news that the committee had, in fact, failed him -- and by a unanimous vote.

After learning that his student had been failed, Westhues angrily confronted Nelson. Westhues' and Nelson's accounts of what was said at this time and in a telephone conversation the following day differ a little. In his statement of grievances Westhues describes these interactions. With regard to the first conversation he says:

I believe I phrased the question: 'What the hell happened?' Nelson simply said that (the student) had failed the examination and that the vote was unanimous.

I did not raise my voice nor call Nelson names nor even express any particular hostility to her. I was, however, overcome with shock and anguish. With the intense emotion I quite honestly felt. I told Nelson the system was evil: 'I'm not saying you're evil, Adie, but the system is.' I told her that she herself with her qualitative orientation to research, would not have gotten through the Ph.D. program here. I do not remember exactly what Nelson said in response. Whatever it was, it let me know that she had followed (the adjunct examiner's) lead in arriving at the decision to fail. I said that somebody must have gotten to him. I had the clear impression from Nelson that she would not have voted to fail the examination had it not been for the way (the adjunct examiner) had structured the decision-making process afterwards. 'But you made it unanimous, Adie,' I said. She looked at me kind of helplessly....

Nelson's account of these events is in her letter of Nov. 14 to the department chair. Nelson says of the first argument:

I was extremely upset by Professor Westhues' comments and with the intensity with which they were delivered. As you might expect given that I am a junior, non-tenured member of the department, it was intimidating to be yelled at and accused, by a full professor and former chair of the department, of contributing to 'evil,' to hear Professor Westhues voice his opinion that I never would have gotten my Ph.D. by the criteria used to evaluate (the student), and state his belief that the failure on the examination attested most fundamentally to my inadequacies as chair of the committee and the department's hostility towards (the student). At no time did Professor Westhues entertain the idea that (the student's) performance on the examination could have been responsible for the decision of the committee....

The following day, Professors Westhues and Nelson talked on the telephone. Professor Westhues reports:

... I wanted to speak with her, but after simply walking away from her the day before, I wanted time for a long enough conversation to reach at least some kind of understanding, despite our different positions and attitudes with respect to (the student). But here she was on the phone, so I told her I was sorry for yesterday's upset. Then she said, 'How is (the student)?' The accent was on the how in her question, and her voice seemed to have a tone of condescension and self-righteousness. I lost my temper. Nelson would later report what I said more precisely than I can even now, so I quote from her report: 'How the hell do you think the man is? What do you want me to tell you , Adie? That the man is okay? Well, the man isn't fucking okay. Do you want me to tell you that I'm afraid the man is going to have a fucking heart attack?'

My outburst provoked Nelson into an angry defense of having failed (the student).... Nelson called herself a 'good Catholic girl,' and insisted that she had done nothing more or less than apply the four criteria stated in the department's study guide for the methods comp. In reply, I asked her if she had seen the Paul Newman movie, in which he, as a lawyer, tells a jury, 'You are the law.' My point was that as an examiner in a Ph.D. program, one should not mechanically apply any criteria, but instead those high elusive, intellectual standards that enable one to recognize excellence.... My most regrettable comment in that telephone exchange was that she herself ought not to feel overly secure in the department whose rules she had applied so faithfully. It was an insensitive thing to say to a junior, as yet untenured colleague, and I realized that instantly by her reaction. She eagerly began asking exactly what I meant, as if she was terrified at the prospect of losing her job.... I told Nelson, nonetheless, that her stock in the department had probably risen as a result of her having failed (the student)....

Of this discussion, Nelson says:

I was extremely upset by Professor Westhues comments and by his tone of voice; it has been over ten years since I received my Ph.D. and began teaching and I have previously taught at two universities and one community college. During this entire time I have never been spoken to in such an unequivocally rude and hostile way by a colleague.... I did not feel that being (the student's) supervisor in any way entitled Westhues to adopt this abusive bullying manner. I became enraged and yelled back at him that I did not deserve to be screamed at and told him 'how dare you speak to me in that way.' I informed him that I resented being blamed for (the student's) failure on the examination.... I told Professor Westhues that whether or not (the student) personally favoured quantitative methods and statistics, he still had to demonstrate his competency in these areas even if he chose never to utilize these methods after he graduated....

...Professor Westhues did see fit to inform me that while he 'respected' me as a colleague, I was ill-regarded and viewed as marginal by the rest of the department. In short he suggested that the department regarded me in much the same manner in which (the student) was supposedly viewed -- with dislike and hostility -- although, he commented, the intensity of the department's negativity towards me had probably been dissipated somewhat by my serving as chair of the committee that had failed (the student) in his second attempt. I asked Professor Westhues to tell me on what basis I was so disliked. He responded that it was the opinion of the department that I was 'not professional'....

Almost immediately following the examination, Professor Westhues and the student began a number of actions to contest the result. The department chair, Professor Ron Lambert, made a number of unsuccessful attempts to meet w