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 Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Donald D. Carter

Chair

FOR THE GRIEVOR

Joel Gardiner

FOR THE EMPLOYER

Lisa Compagnone Counsel Management Board Secretariat

HEARING

December 17, 2003

Decision

This grievance relates to a job competition in which the grievor participated but was unsuccessful. The grievance alleged that the competition was flawed and that the grievor was unjustly denied the position. At the mediation/arbitration hearing held on December 17, 2003, the grievor 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 hearing I ruled that the grievor must first provide written particulars of his grievance by January 17, 2004, before the Board could rule on the relevancy of and admissibility of the documents for which he sought disclosure.

The grievor did not meet the January 17, 2004, deadline. On February 27, 2004, the employer wrote to the grievor giving notice that it intended to bring a motion to dismiss the grievance on the grounds of a lack of particulars. On April 5, 2004, the employer wrote to the Board advising that it still had not received particulars from the grievor and requesting that the grievance be dismissed because of the grievor’s failure to provide particulars. The Board then advised the grievor of this request and invited a response.

The grievor 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 April 22, 2004 which advised me to respond to my employer’s motion to have my grievance dismissed. The letter stated that I must detail in writing, my response to this motion. My response is as follows;

As you may recall at my original hearing, I explained that I would not be able to prove the merit of my grievance without obtaining all answers from all participants in the competition and the corresponding scores from the hiring panel. The purpose of this request is to prove that the scoring of this competition has no true mathematical merit and therefore is subject to personal opinion or bias. There is no definitive scoring grid 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 grievance was 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 hearing 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 discriminatory 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 opportunity to see justice served would not be squandered simply because one party had an unfair advantage over another. As an Operational Manager in the Ministry of Community 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 grievor 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 grievance for a failure to provide particulars.

There is no question that the grievor 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 grievance. In fairness to the grievor 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 grievance 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 grievor were at all relevant to this claim. In order to determine the relevancy of the documents sought by the grievor, the Board must be provided with some details as to whom the grievor 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 recognizes that some grievors will choose not to retain legal counsel and is concerned that unrepresented grievors not face too onerous a procedural burden. Nevertheless all grievors, regardless of whether they retain legal counsel, are expected to take responsibility for the carriage of their grievance by providing the basic particulars underlying their grievance if they wish to seek disclosure of documents from the employer.

For these reasons the Board dismisses this grievance.

Dated at Toronto this 13th day of May, 2004.