P/0017/00
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
R. Chyczij
Grievor
- and -
The Crown in Right of Ontario (Ministry of Labour)
Employer
BEFORE
Henry Maeots
Vice-Chair
FOR THE GRIEVOR
Ron Chyczi, Grievor
FOR THE EMPLOYER
Lisa Compagnone Counsel Legal Services Branch Management Board Secretariat
HEARING
September 19, 2001.
Decision
This proceeding relates to a grievance of Mr. Chyczij dated October 6, 2000. He was unsuccessful in his candidacy for a posted job competition for the position of Manager, Pay Equity Program for a one year temporary assignment. He alleges that the competition process was flawed, breached Management Policy Directives / Guidelines and/or past practice, and that the employer acted in bad faith and in an arbitrary, discriminatory or inequitable manner.
The Hearing date of September 19,2001 was taken up with submissions of the parties relating to preliminary issues and settlement discussions between the parties.
As the settlement discussions did not result in a resolution of the grievance, the board will herein address the preliminary issues.
Exclusion of Witnesses
The grievor expressed his intention to call as a witness the person that the employer wished to retain as its advisor. He requested a motion that such person be excluded from the proceedings other than when giving testimony. That motion was denied as the employer has the discretion to select the one advisor who may remain throughout the hearing, even if he/she is to serve as a witness.
Grievability
While the employer had initially indicated it would challenge the grievability of the issues in dispute, it abandoned such challenge at the commencement of the hearing. Also, the employer abandoned it’s motion for an order from the board to dismiss the grievance on the basis that insufficient information had been received from the grievor to establish a prima facie case and to enable the employer to prepare it’s response. Instead, the employer moved to have the board issue an order for disclosure.
Disclosure
In the normal course of the employer’s grievance process, opportunities are afforded to define the issues between the parties. However, as the initial position of the employer had been that the matter in issue was not a grievable one, no grievance meetings had been held and, as a result, the employer now contends that it lacks sufficient information about the specifics of the grievor’s allegations to enable it to prepare a response.
Each side is entitled to know the case that it is required to meet. When a party is faced with allegations, it should expect to receive an answer to the questions “when”, “where”, “how” and ‘who” from the party making the initial allegations. Accordingly, I direct the grievor to provide the employer with full particulars of the allegations of fact on which he relies in this proceeding, including
details of the specific acts and/or omissions committed by or on behalf of the employer that the grievor alleges constitute either a breach of Policy, Directives, Guidelines or past practice, or which were made in bad faith or in an arbitrary or discriminatory manner,
details of actions or facts which the grievor will contend constitute a flawed competition process,
details of actions or facts relating to the grievor's contention of inequitable treatment,
the names of the individuals alleged to have committed any of the above alleged acts, and
the dates and places where such acts were allegedly committed.
In providing particulars of the above, the grievor is required to provide only the material facts relating to each issue, and is not obliged to set out the evidence upon which he will be relying.
The particulars are to be delivered to counsel for the employer within four weeks of the date of this order, or within such further time as the parties agree.
It is further directed that both parties give each other advance notice if possible on issues, evidentiary or otherwise, as they may arise through the hearing to avoid further delay.
The hearing of the grievance is adjourned to a date to be determined.
Dated at Toronto, this 28th day of September, 2001.