P-2006-2687

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Charles Rice

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Charles Rice

FOR THE EMPLOYER

Meredith Brown Counsel Ministry of Government and Consumer Services

HEARING

November 21, 2007.

SUBMISSIONS RECEIVED

December 24, 2007 & January 3, 2008.

Decision

On February 19, 2007, the board received the grievance of Charles Rice. His complaint listed forty-nine (49) grievances, alleging breaches of working conditions and terms of employment. He grieves, inter alia, being denied a leave of absence before his resignation, the resignation itself, as well as staffing issues and alleged violations of working conditions and terms of employment, at Kinark. At the outset of the hearing, the Employer raised a preliminary motion to dismiss the grievance as untimely and outside the jurisdiction of the board.

The pertinent facts in the matter are as follows. On October 4, 2000, Mr. Rice resigned his employment from the Ontario Public Service (OPS). At the time of his resignation he was acting Manager, Administration and Information Technology, Central West Region. His home position was at the Syl Apps Youth Centre, which was divested to Kinark Child and Family Services. On December 1,2000 Mr. Rice took a job with Kinark as Director of the facility. In 2005, Kinark terminated Mr. Rice’s employment. Mr. Rice agrees with the facts as stated above, but also stated for the record that it was his view that he had been forced against his will to resign in 2000. He had sought a leave of absence but it had been denied. He was told that he could not be an employee of the Ministry and Kinark at the same time, because it would put him in a conflict of interest. Thus he was advised to choose one or the other. So he tendered a resignation on October 4, 2000. However subsequently Mr. Rice took the position that it was only a resignation from his acting management position and that he had not resigned from the OPS. This led to further letters from the then-Regional Director that the Ministry had accepted the October 4, 2000 resignation, but Kinark and the Ministry needed to know what he was doing. The grievor then faxed a note to the Regional Director apologizing for the confusion and stating “ this confirms my resignation from the O.P.S. and employment at Kinark Child and Family Services.” He also asked to meet with the Regional Director to discuss the “situation around my resignation.”

SUBMISSION OF THE EMPLOYER

Counsel for the employer, Ms. Meredith Brown, argued that this board has no jurisdiction to hear Mr. Rice’s grievance, as he is no longer a public servant. She referred to sections 32, 33,34 of Regulation 977,which she noted applied in this case since the grievance was filed before the recent amendments. Ms. Brown argued that the grievor made a well-reasoned decision at the time to resign and take a position at Kinark and that certain things flowed from that resignation. Mr. Rice was part of the tendering group that won the contract for Kinark and he took a job as the Director of the facility. Thus, he ceased to be a public servant seven years ago and the board has no jurisdiction to examine the circumstances around a decision that occurred so many years in the past.

Counsel argued in the alternative, the grievances are not timely. She argued further that the board should not exercise its discretion to extend the time limits in the circumstances. Ms. Brown submitted that Regulation 977 requires that a grievor must file a grievance within fourteen (14) days of becoming aware of the complaint. She noted that the board has discretion to extend the time limit in appropriate circumstances. Although the grievor takes the position that he feared reprisal, counsel argued that the board should not be persuaded by this claim. Counsel referred to documents in evidence that recorded the grievor’s complaints about being denied a leave of absence and not wanting to resign. Counsel also argued that there had been no adequate reason given for such a long delay, and that the employer would be prejudiced in trying to defend the case after seven years.

Counsel for the employer cited the following cases in support of her submission: Coccia and Ministry of Community Safety and Correctional Services (2005) PSGB P/2003/3552 (Leighton); Campbell and Ontario Realty Corporation (2001) PSGB P/0032/99 (Leighton); Marshall and Ministry of Health and Long-Term Care (2005) PSGB 2004/2378 (O’Neil); Kroeger and Ministry of the Solicitor General and Correctional Services (1999) PSGB P/0060/98(Willes); Johnson, Smith and Ministry of the Solicitor General and Correctional Services (1999) PSGB P/0001/99 et al.(Agarwal)

THE GRIEVOR’S SUBMISSION

Mr. Rice submitted that in the fall of October 2000, he had to make a choice of whether or not to take a new position with Kinark, or stay employed with the Ministry. He sought a leave of absence so that he could take the job at Kinark, but maintain his employment with the Ministry. The employer denied the leave of absence on the grounds that there would be a conflict of interest if the grievor were to work for Kinark, while he was still an employee of the government. In the grievor’s view of the details surrounding these facts, he was “forced” or “coerced” into resigning. Thus on October 4, 2000, he tendered a resignation letter. He was of the view at the time that he was treated differently than other managers.

The grievor argued that the reason for the delay in filing his grievance was that he did not have full information to make his case, and he also feared reprisal. The grievor’s submission was that in being confronted by the Regional Director of the Ministry that he must choose between employment at Kinark and employment with the Ministry, he had been threatened. The Executive Director of Kinark also, in his view, threatened him when he said that if the grievor continued to work for the Ministry it was contrary to Kinark’s policy and he would be terminated from Kinark. In the grievor’s view, by denying the leave of absence request and issuing the ultimatum of choosing between Kinark or the Ministry, the Regional Director threatened him and thereby:

initiated a course of systemic harassment that had a significant negative impact on, and set the tone, for the development of my relationship with Mr. Moore and senior staff at Kinark Child and Family Services. This led to a fundamentally poisoned work environment at Kinark and has negatively impacted my career in a significant manner. The systemic harassment continued well into my tenure as Director, Syl Apps Youth Centre, Kinark Child and Family Services.

The grievor also submitted that the Ministry was aware of his complaint and his concerns, and recognized those in a letter of October 31, 2000, but did nothing to follow-up on the matter. Thus the Ministry had notice of the complaint back in 2000. He argued that the nature of the grievances are serious, in that they allege numerous breaches of legislation, directives, policy, guidelines and agreements. Further, the grievor submitted that the employer would not be prejudiced by the delay, for which it had been responsible.

The grievor also noted that his fears of reprisal were confirmed in May of 2005, when after an eight month strike, where the grievor had been part of the on-site management team, he was fired by Kinark. It was his position his termination was contrary to the service contract between the Ministry and Kinark, which stated:

In accordance with the service contract between Her Majesty, The Queen in Right of Ontario, as represented by the Ministry of Community and Social Services (“Ontario”) and Kinark Child and Family Services (Syl Apps Youth Centre) (“service provider”); the service contract description schedule effective December 1, 2000; the RPF project #IT02SAYC/00; and the Kinark proposal of July 20, 2000, page 9, that Charles Rice will be the Director of Syl Apps Youth Centre.

The grievor argued that this was evidence that the Ministry had failed to maintain a term of the service contract, which provided that he would be the Director of the facility.

In summary, the grievor argued that the board had jurisdiction to hear the case because it relates to allegations of treatment that was “arbitrary, discriminatory or in bad faith.” Finally, that the reason for the delay was a very real fear of reprisal by Ministry employees even while he was employed at Kinark. Thus the time limit should be extended by the board to allow a full hearing on the merits of his grievance.

The grievor relied on the following cases in support of his submission, which were provided to me after the hearing, and which I received on December 24, 2007: McConnell and Ministry of Transportation (1996) P/0051/93 (Leighton); Laird and Ministry of Community Safety and Correctional Services (2005) P/2003/0799 (O’Neil); McLuhan and Ministry of Transportation (2002) P/0053/93 (Maeots); Coccia and Ministry of Community Safety and Correctional Services (2005) P/2003/3552 (Leighton); Kidston and Management Board Secretariat (2002) P/0046/01 (Maeots); de Boer and Ministry of Community Safety and Correctional Services (2006) P/2005/1033 (O’Neill); Severin v. J & Z Holdings Inc., 2005 CanLII 23310 (ON L.R.B.); MacCosham Inc. v. Deck, 2005 ABPC 352 (Provincial Court of Alberta); TD Canada Trust v. McMaster et al., 2003 BCSC 1626 (Supreme Court of British Columbia); Girling v. Ministry of the Solicitor General and Correctional Services (2002) P/0013/98 (Leighton); Majkot, Ferguston, Imonti v. Ministry of the Attorney General (1999) P/0025/97 et al (Leighton); Leda Furniture Ltd. v. Assanti, 2003 CanLII 21414 (ON L.R.B.); Temiskaming Lodge Limited v. Canadian Union of Public Employees, Local 3866, 2006 CanLII 53947 (ON L.A.) (Randall); 12399745 Ontario Ltd. v. Bank of America Canada, 2003 CanLII 26791 (ON S.C.); Bolton v. City of Surrey, 1999 CanLII 5971 (BC S.C.); Stott v. Merit Investment Corp., 1988 CanLII 192 (ON C.A.); Oseen v. Chinook’s Edge School Division No. 73, 2006 ABCA 286.

DECISION

Having carefully considered the evidence and submissions and of the parties, I have decided that the grievance must be dismissed. Insofar as the allegations refer to events that occurred in October of 2000, in and around the time of the grievor’s resignation from the OPS, I find that the grievance is too late. Section 34 of Regulation 977 to the Public Service Act provides that a person who has a complaint about working conditions must make the grievance within fourteen (14) days of becoming aware of his or her complaint. There is no question that the grievor was aware of his grievance and, in fact, has conceded that he is beyond the fourteen-day limit. The next step of the analysis, then, requires an application of the well-known factors found in Becker Milk. This board has recognized that the Becker Milk factors must be analyzed in deciding whether or not to extend the time limits required under the regulation. The factors are: 1) the reason for the grievor’s delay in filing, 2) the length of the delay, and 3) the nature of the grievance. As Arbitrator Burkett noted in Becker Milk:

If the offending party satisfies an arbitrator, not withstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time limits. (As cited in Coccia, at page 8.)

One reason given for the grievor’s delay in this case is that he feared reprisal from the Ministry. However, there was no evidence to support a finding by this board that the grievor’s fear of reprisal was justified. Mr. Rice may have felt threatened by having to make a choice between continuing employment with the OPS or resigning and becoming the Director of the divested facility, but there was nothing in the documents or evidence put before me to suggest any inappropriate behaviour by anyone in the Ministry.

Another reason touched upon was that the grievor had inadequate information to forward his grievance. This reason may, in some circumstances, lead to the board exercising its jurisdiction to extend the time limits. But this is not one of them. As noted above, there was no evidence to support a finding that the grievor was unaware that he had been aggrieved. He may not have known the full extent of his complaints until he began to research policies and directives. However, this is no excuse for not filing a grievance.

The grievor also argued that the delay in this case was the responsibility of the employer because the Regional Director would not meet to discuss his complaints. I find that there is no evidence to support this submission. In fact, the evidence on the record contradicts this. There is no evidence before me that the grievor did anything to advance his grievance in October 2000 other than asking for a meeting. In reply the Regional Director was clear that he would meet with Mr. Rice. The grievor was advised to contact his assistant to arrange the meeting. There is no evidence that the grievor ever did this or anything else to advance his grievance. Even if the employer refused to meet with the grievor it would not justify the delay here. It is clear that the grievor did not act with due diligence in forwarding his grievance.

The second factor, the length of delay, in this case is extreme. This board has held, in the past, that a significant delay results in inherent prejudice to the employer. A delay of six years would make it virtually impossible for the employer to mount a defence. In Kroeger, supra, the board held that allowing a grievance to proceed after a six-year delay, without compelling evidence to justify it, would be contrary to principles of fairness and equity:

To allow the grievance in this case to proceed after a delay of six years would in all likelihood raise difficulties for the Employer to prepare and properly defend against the grievance, and in the absence of compelling evidence to justify the delay, this Board must conclude that to proceed would offend the principles of fairness and equity. (p.7)

I agree with this reasoning and I am persuaded that to allow Mr. Rice’s grievance to proceed would offend principles of fairness and equity.

Further, the nature of the grievance in this case, while serious in its allegations, cannot override such a significant delay. Thus, I find balancing the interests of both parties, and considering all the circumstances of the case, the delay in filing the grievance is excessive and there is no evidence to support the board’s discretion to extend the time limit.

Insofar as the Mr. Rice’s complaints allege mistreatment by Kinark, and involve allegations arising during his employment there, I find that this board has no jurisdiction to hear these complaints. The grievor was an employee of Kinark and was no longer an employee of the Ministry therefore this board has no jurisdiction to hear these complaints.

For the reasons noted above, I hereby dismiss this grievance.

Dated at Toronto this 19th day of February, 2008.