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HomeMy WebLinkAboutP-2003-0951.Gardiner.04-05-13 Decision Public Service Commission des ~~ Grievance Board griefs de la fonction publique Bureau 600 ~-,... Suite 600 Ontario 180 Dundas SI. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 P-2003-0951 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN GardIner Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Donald D Carter Chair FOR THE GRIEVOR Joel GardIner FOR THE EMPLOYER LIsa Compagnone Counsel Management Board Secretanat HEARING December 17 2003 2 DeCISIon ThIS gnevance relates to aJob competItIOn In whIch the gnevor partIcIpated but was unsuccessful The gnevance alleged that the competItIOn was flawed and that the gnevor was unjustly demed the posItIOn. At the medIatIOn/arbItratIOn heanng held on December 17 2003 the gnevor requested that the employer dIsclose the test results of all candIdates partIcIpatIng In the competItIOn, the test questIOns, and the answers and essays provIded by all candIdates At the close of the heanng I ruled that the gnevor must first provIde wntten partIculars of hIS gnevance by January 17 2004 before the Board could rule on the relevancy of and admIssIbIlIty of the documents for whIch he sought dIsclosure The gnevor dId not meet the January 17 2004 deadlIne On February 27 2004 the employer wrote to the gnevor gIVIng notIce that It Intended to bnng a motIOn to dIsmIss the gnevance on the grounds of a lack of partIculars On Apnl 5 2004 the employer wrote to the Board adVISIng that It stIll had not receIved partIculars from the gnevor and requestIng that the gnevance be dIsmIssed because of the gnevor's faIlure to provIde partIculars The Board then advIsed the gnevor of thIS request and InvIted a response The gnevor responded wIth a memorandum, dated May 10 2004 dIrected to me as Chair of the Board. The text of that memo IS set out below. I have receIved a letter from Ms GoodwIn dated Apnl 22, 2004 whIch advIsed me to respond to my employer's motIOn to have my gnevance dIsmIssed. The letter stated that I must detaIl In wntIng, my response to thIS motIOn. My response IS as follows, As you may recall at my ongInal heanng, I explaIned that I would not be able to prove the ment of my gnevance wIthout obtaInIng all answers from all partIcIpants In the competItIOn and the correspondIng scores from the hmng panel The purpose of thIS request IS to prove that the sconng of thIS competItIOn has no true mathematIcal ment and therefore IS subject to personal OpInIOn or bIas There IS no defimtIve sconng gnd that can be paralleled to specIfic answers The process IS arbItrary and fraught wIth InCOnsIstencIes I feel my employer's concern wIth confidentIalIty IS an excuse to prevent me from expOSIng these InCOnsIstencIes or the worry of thIS decIsIOn settIng precedent and forcIng them to restructure theIr entIre competItIOn process, If my gnevance was 3 successful TheIr concerns wIth respect to the confidentIalIty of the other partIcIpants could be easIly be addressed by blackIng out the name of said partIcIpants I also expressed my frustratIOn wIth the heanng process, specIfically the fact that my employer had the benefit of traIned legal representatIOn and access to human recourse personnel to assIst them In thIS matter I find thIS entIre process unfair and the rules of engagement dISCnmInatory to those who cannot afford legal representatIOn to assIst me In thIS matter As Chair of thIS board, 1 would lIke to belIeve that you would endeavour to ensure that an opportumty to see JustIce served would not be squandered sImply because one party had an unfair advantage over another As an OperatIOnal Manager In the Mimstry of Commumty Safety and CorrectIOnal ServIces, I am one of only a few who IS not represented by an assocIatIOn or bargaInIng group In the PublIc ServIce I realIze thIS IS not for you to correct or address but I feel It necessary to share wIth you, so that you may understand my plIght. The employer responded In a letter dated, May 11 2004 pOIntIng out that the gnevor had not provIded any partIculars In hIS memorandum but had only renewed hIS request for dIsclosure from the employer The employer requested that the Board now dIsmIss the gnevance for a faIlure to provIde partIculars There IS no questIOn that the gnevor has faIled to provIde sufficIent partIculars after beIng provIded wIth more than adequate tIme to do so and, In these cIrcumstances, the Board has no alternatIve other than to dIsmIss the gnevance In fairness to the gnevor who was not represented by legal counsel, however It IS Important to explaIn why partIculars must be provIded before the Board can deal wIth hIS request for dIsclosure from the employer The gnevance before the Board, whIle allegIng that the competItIOn was flawed, was not standIng by Itself sufficIently specIfic for the Board to determIne If the documents sought by the gnevor were at all relevant to thIS claim In order to determIne the relevancy of the documents sought by the gnevor the Board must be provIded wIth some detaIls as to whom the gnevor alleges to be responsIble for the flawed competItIOn, what actIOns occurred and how these actIOns caused the competItIOn to be flawed, and where and when these actIOns occurred. The Board recogmzes that some gnevors wIll choose not to retaIn legal counsel and IS concerned that unrepresented 4 gnevors not face too onerous a procedural burden. Nevertheless all gnevors, regardless of whether they retaIn legal counsel, are expected to take responsIbIlIty for the carnage of theIr gnevance by provIdIng the basIc partIculars underlYIng theIr gnevance If they wIsh to seek dIsclosure of documents from the employer For these reasons the Board dIsmIsses thIS gnevance 2004 Donald D Carter Chair