P-2009-1930

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Tara Jackson

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANT

Tara Jackson

FOR THE EMPLOYER

George Parris Ministry of Government Services Counsel

HEARING

December 20, 2010.

Decision

1This decision deals with preliminary issues raised by the employer in regards to the grievance of Ms. Tara Jackson which alleges improper removal from a temporary acting assignment and exclusion from the competition for the permanent position in the context of a work environment poisoned by racial bias.

2The issue raised by the employer highlights two different routes for matters to be heard by the Public Service Grievance Board (PSGB). One of these routes is set out in the relatively new provisions of Part VI of The Public Service of Ontario Act, 2006 (PSOA), dealing with disclosing and investigation of wrongdoing. The PSGB has jurisdiction under that Part to deal with complaints of reprisal against public servants not covered by a collective agreement who have been involved in specified activities related to the reporting and investigation of wrongdoing. The Board does not have jurisdiction to adjudicate complaints of wrongdoing themselves. The Board also has jurisdiction over complaints of reprisal under PSOA’s Part V, dealing with political activity, but that is not involved in this matter. The other route to this Board relevant here is the one set out in Section 4 of Regulation 378/07 under PSOA, providing that complaints about terms and conditions of employment by certain public servants not covered by collective agreements may be brought to the Board. This is the most often used route, and in such complaints, the Board’s jurisdiction is not restricted to complaints of reprisals.

3The complaint dealt with in this decision was filed on a form intended for use in the case of the reprisal jurisdiction under both Part V and Part VI of PSOA. The material filed makes detailed allegations of wrongdoing, but did not allege that the actions taken against the complainant were reprisals. At the outset of the hearing, employer counsel noted that the Board’s jurisdiction under Part VI was limited to hearing complaints of reprisals, and asked that particulars of any reprisal for complaining of wrongdoing be provided. In default of such particulars, the employer requested that the complaint be dismissed as the material provided to date did not make out a case of reprisal.

4In the second prong of its preliminary submissions, the employer submits that, if the complaint were to be considered a regular complaint of a breach of the complainant’s terms and conditions of employment, the proper procedure for a regular grievance had not been followed, including that the grievance had not gone through the dispute resolution procedure contemplated by the statute, and was not filed in a timely manner, such that the grievance should be dismissed on that basis as well.

5The grievor maintains that the material before the Board constitutes a grievance properly before the Board. She acknowledges that the substance of the grievance does not relate to reprisal for disclosure of wrongdoing under Part VI of the PSOA. She noted that no objection had been made before the morning of the hearing, despite the Ministry having been apprised of the application for well over a year, and offered to repair any technical defect.

Factual/procedural background

6For the purpose of preliminary motions such as this, the facts asserted in the application are assumed true and provable. Findings concerning any disputed facts would only be made on evidence at a hearing on the merits of the complaint. What follows is a summary of the principal alleged facts necessary to understand this decision, rather than a complete recounting of the allegations made in the material before me.

7Ms. Jackson, the complainant, started working on a temporary assignment as Acting Director, Systemic and Organizational Change Branch and Workplace Effectiveness Branch, in October 2008. On July 13, 2009, she received a memo from Deputy Minister Jay C. Hope giving her two weeks notice that the assignment was to terminate on July 27. She was then to return to her home position of Consultant, Conflict Resolution and Human Rights, within the Conflict Resolution and Human Rights Branch, Organizational Effectiveness Division, a lower rated position. It is relevant to Ms. Jackson’s complaints that she self-identifies as a Canadian woman of Indo-Caribbean/South Asian ancestry. She alleges that the Deputy Minister had instructed the Assistant Deputy Ministry to “change the colour” of the Director’s position, and that the change followed and was triggered by racist e-mails alleging that she and other persons of colour were unqualified to hold the positions they did.

8The permanent position of Director, Systemic and Organizational Change Branch was posted and Ms. Jackson applied by letter dated July 31, 2009. She was neither contacted concerning her application, nor interviewed, despite having acted in the position for several months. She alleges that this, together with the events which preceded it, constitutes violation of several employer policies and the Ontario Human Rights Code, as the exclusion was motivated by reasons grounded in the racist e-mails, and misconduct by the Deputy Minister.

9There was discussion of arranging a secondment for Ms. Jackson to the Adult Institutional Services division but it became clear in August that this would not proceed.

10Ms. Jackson retained counsel who wrote on September 25 and September 28, 2009 to Ms. Shelly Jamieson, Secretary of the Cabinet, asking for her intervention in the competition for the Director’s position. These letters contained detailed allegations concerning Ms. Jackson's treatment in regards to this posting and the events surrounding the ending of her acting assignment, including an operational review, alleged to be seriously flawed. In response to the letters of September 25 and 28, Ms. Jackson’s counsel received a letter from government counsel advising that the competition would proceed in the ordinary course.

11On October 9, 2009, this application was filed with the Board on a form entitled “Political Activity/Disclosing and Investigating Wrongdoing”. A covering letter from then counsel for the complainant explains in some detail why the matter should be considered to fall under Part VI of the PSOA. His September 25 and 28 letters to the Secretary of Cabinet were appended in elaboration of the complaint.

12Mediation was scheduled for February 10, 2010, but the matter did not settle.

13Particulars were requested from Ms. Jackson’s counsel, and later from Ms. Jackson herself, when it had become clear she was proceeding to the hearing without counsel. She provided additional particulars on December 15, 2010, which are framed as a complaint of arbitrary conduct, harassment and discrimination, principally on the basis of race and gender, and do not reference Part VI of the PSOA. The dates of events alleged to constitute breaches of policy and or statute mentioned in these later particulars range from April 16, to October 16, 2009.

Excerpts from Statutes and the Board’s Rules

14Relevant statutory provisions and excerpts from the Board’s Rules are attached as Appendix A.

Submissions and Conclusions

15The employer’s motion is based on the assertion that the Board's jurisdiction is determined by how the matter comes before it. This application, in the employer’s submission, was very clearly brought under Part VI, which provides jurisdiction, limited by section 139, to reprisal complaints.

16The employer argues in the alternative, without conceding that the matter can be converted into a regular terms and conditions grievance, that if it was intended as a regular grievance, the grievance should be dismissed because it completely bypassed the dispute resolution process and did not respect the time limits set out in Regulation 378/07. Section 8 of the regulation provides that notice of proposal to file a complaint must be given to the Deputy Minister, and section 9 provides that a complainant is not eligible to file a grievance until the expiry of the period of at least thirty days prescribed for dispute resolution procedures.

17Counsel argues that, assuming without conceding that the September 25 letter from the grievor's counsel amounts to notice to file the complaint, that date is significantly after the 14 days from July 7, 2009 when the events complained of occurred. The correspondence before the Board makes clear that both the complainant and her counsel were well aware of what had happened to her so there can be no argument that there was some lack of awareness which caused a delay. The event complained of was the ending of the temporary assignment and the time began to run as of the date it ended, in the employer’s view.

18Further, counsel for the employer argues that the timelines in sections 8 (1), 9 (1) and 10 (1) of Regulation 378/07 are mandatory timelines that are not able to be extended by the Board. Counsel refers to Section 54 of the former regulation 977, no longer in effect, which provided the Board with jurisdiction to extend time limits. Counsel argues that when the new regulation 378/07 was implemented, it contained no similar provision, and thus any jurisdiction the Board had to extend time limits is no longer applicable. Referring to more recent jurisprudence of the Board dealing with delay, some dealing with when the grievor had become aware of the event which gave rise to the grievance, counsel notes that the argument that he is making was apparently not made to the Board, and it appeared the parties had assumed there was jurisdiction to extend the time limits set out in the statute.

19In support of his arguments, employer counsel relies on the following case law: Daniel Beauchamp 2010 Can LII 6691 and 11287 (ON L.R.B.) and Service Employees International Union, Local 204 v. Leisureworld Nursing Homes Ltd., [1997] O.J. No. 1469, 99 O.A.C. (Divisional Court), affirmed by the Court of Appeal with brief reasons reported at [1997] O.J. No. 4815, 75 A.C.W.S. (3d) 854 (Ont. C. A.). In the Daniel Beauchamp decisions, the Ontario Labour Relations Board found that in dealing with its jurisdiction over appeals under the Occupational Health and Safety Act, there was no language allowing for the extension of the timelines. In the result, despite sympathetic facts, which included a one day delay caused by solicitor inadvertence, the Board dismissed an appeal as untimely. In doing so, the Board also found that its broad power to control its own procedure did not give it jurisdiction to amend the timelines set by statute.

20In the Divisional Court’s decision in Leisureworld, affirmed on appeal, cited above, the Court found it to be unambiguous that when words relating to the power to extend time limits in provisions of collective agreements related to arbitration procedures were dropped from the Labour Relations Act, arbitrators lost jurisdiction to grant relief from time limits for referral to arbitration, as opposed to steps within the grievance procedure leading to the referral to arbitration. Counsel argues that the amendment to the regulation resulting in the absence of the provisions providing for the extension of time limits in Regulation 378/07 is similarly unambiguous, and that this Board’s jurisdiction to extend time lines has been removed.

21Further, counsel observes that the relevant procedural rules here are governed by statute, rather than the rules of the Board, which are within the Board’s own control.

22Ms. Jackson responded to the employer’s objections to the effect that she did not consider that that there was any delay in grieving. She emphasized that the issues that she was raising were human rights issues: racial discrimination and systemic harassment. Harassment is defined as a course of vexatious behaviour, implying an ongoing course of behaviour. Although she received notice of the ending of her temporary assignment in July, this was part of a course of events which continued into October. The grievance was filed on October 9 once it had been made clear that the competition would proceed despite the letters sent on September 25 and 28 asking for the intervention of the Secretary of Cabinet.

23Ms. Jackson detailed several incidents between July and October which lead her to the conclusion that she had to grieve. These included the removal of other employees of Caribbean origin from their positions, the fact that the employer abandoned a secondment that had been proposed to her after the ending of her temporary assignment, and unsuccessful interviews in September for other senior positions which left her feeling she had been “black-listed”. As well, a day or two before the September 25 letter, she learned that someone in the Deputy Minister's office had invited a white male candidate to apply for the position she had been acting in, when she herself had received no response.

24Ms. Jackson submitted that she considered the September 25 letter from her lawyer to the Secretary of Cabinet to be notification of the complaint. Once she received a response on October 2 on behalf of the Secretary of Cabinet, the grievance was delivered to the Board. In terms of that continuum she takes the position there was no delay in filing. The complainant acknowledges that she did not wait 30 days for the dispute resolution process to take place, but says that given the October 2 response, she maintains that it was reasonable to conclude that her attempt to seek a solution had failed. Her lawyer’s letters had asked the Secretary of Cabinet to intervene to assure a fair process. As to the idea raised by employer counsel that the investigation asked for in the lawyer’s letters appeared to be one under Part VI, Ms. Jackson said the request had nothing to do with wrongdoing under that Part. Rather it dealt with things that had gone wrong such as an operational review, as it was not fair to review the operation of the branch two days after its permanence was announced, and with no opportunity to respond to any concerns that might have been raised. Further, events continued to unfold which made matters worse, demonstrating, in the complainant’s view, both personal and systemic discrimination.

25Further, the complainant maintains that although she attempted to resolve the matter prior to the hearing, the employer did not do so, so that the allegation that she did not wait for the dispute resolution period to elapse is disingenuous.

26Moreover, the complainant notes that the employer filed no response to her application within twenty days before the hearing as required by the rules of the Board, regardless of whether the matter is under Part VI or the regular complaint procedure governed by the regulation.

27The complainant submits that in any event there was no prejudice because all of these issues have been presented at the Human Rights Tribunal of Ontario in evidence related to the ongoing MacKinnon complaint involving the Ministry.

28In reply, employer counsel emphasizes that the September letters sent to the Secretary of Cabinet included requests for an investigation of the Deputy Minister’s conduct, which looked to the employer like a disclosure of wrongdoing under Part VI of PSOA, and a request that the competition for the Director position be set aside pending an investigation by the office of the Secretary of Cabinet. Counsel rejects the idea that this could fulfil the requirement of the regulation to give notice of intention to file a complaint of a breach of terms and condition of employment, especially as the October 9 application was explicitly framed as an application under Part VI.

29Quite apart from the timeliness argument, and whether or not there were ongoing events of which Ms. Jackson now complains, employer counsel argues that the complaint should be dismissed as it was forwarded to the board in total disregard of section 9 of the Regulation.

30The question to be determined is whether there is a grievance properly before the Board which may be heard on its merits. The complainant concedes that there has been no reprisal for a report of wrongdoing in the sense contemplated by Part VI of PSOA. And it is clear from the sequence of events that the employer actions which negatively impacted her of which she complains occurred before she made her allegations of wrongdoing. In these circumstances, on the facts alleged, a case that the negative employer actions constituted reprisal for the later report of wrongdoing could not be made out. Thus, I agree with the employer’s submission that, considered as a complaint under Part VI, the application ought to be dismissed.

31As discussed above, the other potential avenue for Ms. Jackson’s issues to be heard is as a complaint of a breach of her terms and conditions of employment. It was not suggested that the allegations do not raise a prima facie case of a breach of her terms and conditions of employment. Rather, the key argument is that the preconditions for the Board to have jurisdiction over her complaint have not been met. Section 8 of the Regulation requires that notice of the intention to file a complaint be filed with the Deputy Minister, and section 9 provides that a complainant is not entitled to file a complaint with the Public Service Grievance Board until expiry of the thirty day period provided for dispute resolution.

32The material before me gives no basis on which I could find that notice of proposal to file a complaint was ever given to the Deputy Minister, as required by s. 8. The letters written in September to the Secretary of Cabinet were attempts to obtain intervention from above the Deputy Minister level because there was apparently no confidence that an appeal to the Deputy Minister himself would be successful, as the complaints were about the Deputy Minister’s own behaviour. Nonetheless, the requirement of the regulation is clear that notice is to be given to the Deputy Minister. There is no provision that such notice need not be given where the complaint is about the Deputy Ministry’s conduct. There is nothing innately unworkable about this, in my view, and it is clear that the intent of the regulation is that there would be at least a thirty day opportunity to resolve the matter before a formal complaint was launched.

33Furthermore, although the complainant felt an urgency because the disputed competition for the Director’s position was going ahead under conditions she did not consider fair, despite her protest, the regulation does not provide an expedited route to the Board. It quite explicitly provides that a complainant is not entitled to file a grievance unless the time provided for the dispute resolution has expired. I am not persuaded that the Board has the power to overlook this precondition, despite the importance of the issues raised by the complainant. It is clear from the drafting of the complaint forwarded on October 9 that a conscious choice was being made to circumvent the prescribed dispute resolution process. Counsel for the complainant at the time in fact made specific reference to the procedures that must be followed under Regulation 378/07, writing that “one who lodges a complaint under Part VI of the Act does not have to abide by the mandatory language of the Regulation that requires certain pre-requisites to be met in order for the PSGB to take jurisdiction.” Rather, counsel for the complainant specified that the allegations of misconduct by the Deputy Minister qualified under Part VI, so that the pre-conditions in the regulation need not be an obstacle, and asked the Board to use section 23 of its Rules to devise a more expeditious route than that set out in the regulation.

34The problem with this approach for current purposes is that, as discussed above, it is now clear that, although the allegations levelled against the Deputy Minister may qualify under Part VI as allegations of wrongdoing, there is no allegation of reprisal sufficient to give the Board jurisdiction under that Part. Without such an allegation, the Board is left with the non-observance of the pre-conditions for a “regular” complaint of breach of the complainant’s terms and conditions of employment to be filed with the Board.

35As noted above, Ms. Jackson argued that the employer’s objections came too late. In legal terms, this raises the issue of waiver, the general principle in arbitral case law that a procedural objection may be found to have been waived when there has been a failure to raise such an objection in a timely manner, and the taking of what is known as a fresh step prior to raising the objection. Although it is indeed unfortunate that the preliminary issues did not surface earlier, it is difficult to find the elements of waiver on the facts before me, in that the procedure adopted by the complainant under Part VI did not involve the same requirements set out in the regulation for regular complaints of breaches of terms and conditions of employment, and it was only at the hearing of this matter that the complainant indicated that her complaint was not, in substance, a Part VI complaint. The employer’s original objection was to the Part VI complaint and is not one that can be described as procedural; rather it was the substantive argument that, even accepting everything the complainant asserts, it does not make out a case of reprisal under Part VI of the PSOA. Moreover, it is during the thirty day dispute resolution process prescribed for regular terms and conditions complaints that procedural objections are usually brought, but, by the complainant’s own procedural choice, that process was bypassed. I have no evidence on which I could find that there was some other action taken by the employer that constitutes a fresh step under the procedure for hearing terms and conditions complaints, as it was not until the hearing that the issue arose as to whether it might be considered a complaint of a breach of terms and conditions of employment, rather than a complaint under Part VI, as it appeared to be.

36The complainant also notes that the employer did not file a response to her complaint within 20 days of the first day of hearing, as required by the Board’s rules. Although this is a defect in the employer’s process, which should not have occurred, it cannot have a determining effect if the complaint is not properly before the Board in the first place.

37The question becomes whether this is a situation that can now be repaired, as offered by the grievor, as she has important issues that she wishes the Board to hear. The issue of the pre-conditions set out in Sections 8 and 9 of the Regulation is a matter of observance of statutory conditions, rather than a matter of compliance with the Board’s rules, which could call into play section 28 of the Statutory Powers Procedure Act, if there had been substantial compliance. In any event, it cannot be said that there was substantial compliance with a procedure that was explicitly rejected in the complainant’s application in October 2009.

38Furthermore, there was no suggestion that the Board can simply ignore the fact that the preconditions in sections 8 and 9 were bypassed, or that there is power in the Board to treat the matter as if those preconditions had been met. Nor am I aware of any authority to that effect. In the result, it would appear that the complainant was not eligible to file the grievance under s. 9 because none of the pre-conditions as to notice and allowance of opportunity for the dispute resolution process occurred. If the complainant was not eligible to file the grievance, there is no grievance properly before the Board, and it must be dismissed.

39As to the complainant’s point that there is no prejudice to the employer as they are well aware of the issues she raises from other proceedings, that would be a relevant consideration if there was a grievance properly before the Board, but in the current circumstances, the absence of prejudice cannot determine the outcome of this matter, as the statutory preconditions have not been met.

40Given the findings above, it is not necessary to deal with the employer’s submissions about the timeliness of the grievance, or the meaning of the amendments to the regulation. I would note that there were portions of the particulars furnished to the employer that would have been timely in any event.

41For the reasons set out above, the complaint is hereby dismissed.

Dated at Toronto this 31st day of May 2011.

APPENDIX A

Excerpt from the Public Service of Ontario Act, PART VI

No reprisals

139. (1) No person shall take a reprisal against a public servant because he or she has,

(a) sought advice about making a disclosure about wrongdoing in accordance with this Part;

(b) made a disclosure about wrongdoing in accordance with this Part;

(c) co-operated in an investigation or other process related to a disclosure of wrongdoing made in accordance with this Part;

(d) acted in compliance with this Part; or

(e) sought enforcement of this Part. 2006, c. 35, Sched. A, s. 139 (1).

Same

(2) For the purposes of subsection (1), a reprisal is any measure taken against a public servant that adversely affects his or her employment or appointment and includes but is not limited to,

(a) ending or threatening to end a public servant’s employment or appointment;

(b) disciplining or suspending or threatening to discipline or suspend a public servant;

(c) imposing or threatening to impose a penalty related to the employment or appointment of a public servant;

(d) intimidating or coercing a public servant in relation to his or her employment or appointment. 2006, c. 35, Sched. A, s. 139 (2).

Complaint about reprisal

140. (1) A public servant described in subsection (2), (3) or (4) may complain under this section that he or she has suffered a reprisal prohibited by section 139. 2006, c. 35, Sched. A, s. 140 (1).

Public servant not subject to collective agreement

(3) A public servant employed under Part III who is not subject to the terms and conditions of a collective agreement may file the complaint with the Public Service Grievance Board. 2009, c. 33, Sched. 17, s. 10 (15).

Excerpts from Regulation 378/07 under The Public Service of Ontario Act:

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 to file such a complaint;

(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) if the public servant complies with the filing requirements set out in section 10.

(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

1. The term or duration of the public servant's appointment to employment by the Crown.

2. The assignment of the public servant to a particular class of position.

3. A dismissal without cause under subsection 38 (1) of the Act or a matter relating to such a dismissal.

4. The evaluation of a public servant's performance or the method of evaluating his or her performance.

5. The compensation provided or denied to a public servant as a result of the evaluation of his or her performance.

Eligibility generally

5. (1) Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32 (1) or (2) of the Act to employment by the Crown. O. Reg. 378/07, s. 5 (1).

(2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint:

1. He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006.

2. He or she was represented by the Ontario Crown Attorneys’ Association or the Association of Law Officers of the Crown under an agreement between the Crown and one or both of those Associations.

3. He or she was employed in a position that was classified under subsection 33 (1) of the Act as a term classified position.

4. He or she was employed for a fixed term,

i. on a non-recurring project,

ii. in a professional or other special capacity, or

iii. on a temporary work assignment arranged by the Public Service Commission in accordance with a program for providing temporary help.

5. He or she was employed for a fixed term for fewer than 14 hours per week, employed for a fixed term for fewer than nine full days in four consecutive weeks or employed for a fixed term on an irregular or on-call basis.

6. He or she was employed for a fixed term during his or her regular school, college or university vacation period or was employed for a fixed term under a co-operative educational training program. O. Reg. 378/07, s. 5 (2).

(3) Subsections (1) and (2) do not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 5 (3).

Restrictions, complaint about dismissal for cause

6. A person is eligible to file a complaint about dismissal for cause only if, immediately before his or her dismissal,

(a) he or she had been employed continuously for at least 12 months for a fixed term or a succession of fixed terms under subsection 32 (1) or (2) of the Act; or

(b) he or she was employed otherwise than for a fixed term and was not on probation. O. Reg. 378/07, s. 6.

Restrictions, complaint about a working condition or a term of employment

7. (1) A public servant is eligible to file a complaint about a working condition or a term of employment only if he or she had been employed continuously for at least six months before the deadline for giving notice in accordance with section 8 of his or her proposal to file the complaint. O. Reg. 378/07, s. 7 (1).

(2) Despite subsection (1), the following public servants are not eligible to file a complaint about a working condition or a term of employment:

1. A public servant employed in a position that is classified under subsection 33 (1) of the Act as a position within the Senior Management Group.

2. A public servant who is employed as a Branch Director or as a Hospital Administrator.

3. A public servant who is employed in a position with headquarters located outside Ontario.

4. A public servant who is employed by the Crown as a lawyer. O. Reg. 378/07, s. 7 (2).

Filing a Complaint

Notice of proposal to file a complaint

8. (1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity:

9. A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.

10. A complainant who, at the material time, worked in a Commission public body shall give the notice to the chair of the Public Service Commission. O. Reg. 378/07, s. 8 (1).

(2) Subsection (1) does not apply with respect to a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 8 (2).

(3) The notice must set out the reasons for the complaint. O. Reg. 378/07, s. 8 (3).

(4) The notice must be given within the following period:

1. For a complaint about dismissal for cause, within 14 days after the complainant receives notice of the dismissal.

2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.

3. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint. O. Reg. 378/07, s. 8 (4).

Period for dispute resolution

9. (1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until expiry of the period provided under this section for dispute resolution. O. Reg. 378/07, s. 9 (1).

(2) Subsection (1) does not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 9 (2).

(3) If the complainant was required to give a deputy minister notice of the proposal to make the complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of,

(a) the day that is 30 days after the meeting; or

(b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint. O. Reg. 378/07, s. 9 (3).

(4) If the complainant was required to give the chair of the Public Service Commission notice of the proposal to make the complaint, and if the chair or his or her delegate meets with the complainant within 30 days after the chair receives the notice, the period provided for dispute resolution expires on the earlier of,

(a) the day that is 30 days after the meeting; or

(b) the day on which the chair gives written notice to the complainant of his or her decision about the proposed complaint. O. Reg. 378/07, s. 9 (4).

(5) If the deputy minister or chair of the Public Service Commission, as the case may be, or his or her delegate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires 30 days after the notice was given to the deputy minister or chair. O. Reg. 378/07, s. 9 (5).

Filing a complaint

10. (1) Within 14 days after the expiry of the period, if any, provided for dispute resolution under section 9, the complainant may file the complaint with the Public Service Grievance Board by delivering it to the chair of the Board. O. Reg. 378/07, s. 10 (1).

(2) The complaint must set out the reasons for the complaint and must include the notice of the proposal, if any, to make the complaint and such other information and documents as the Board may specify. O. Reg. 378/07, s. 10 (2).

Excerpt from Regulation 977, under the Public Service Act, now superseded

54. The Board or a Classification Rating committee may, of its own motion,

(a) abridge the procedure set out in this Part and hear the grievance at any time under section 48: or

(b) extend the time limits specified in this Part, RO 1980, Reg, 881, s. 61.

Excerpt from the Board’s Rules:

Form 1a –Complaint under Part V of the Act Political Activity and/or Part VI of the Act Disclosing and Investigating Wrongdoing

4. (1) An application to the Board shall be delivered to the Board in Form 1a.

(2) The Board shall give a copy of the application to the Deputy Minister concerned.

(3) The Employer shall deliver to the Board in Form 2 its response to the application no later than 20 days prior to the first scheduled hearing date.

Other Matters

23. Where matters are not covered by these rules, the practice will be decided in a manner consistent with the rules or in any way the Board considers advisable.

Excerpt from the Statutory Powers Procedures Act

Control of process

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1. 1999, c. 12, Sched. B, s. 16 (8).

Rules

25.1 (1) A tribunal may make rules governing the practice and procedure before it. 1994, c. 27, s. 56 (38).

Application

(2) The rules may be of general or particular application. 1994, c. 27, s. 56 (38).

Consistency with Acts

(3) The rules shall be consistent with this Act and with the other Acts to which they relate. 1994, c. 27, s. 56 (38).

Substantial compliance

28. Substantial compliance with requirements respecting the content of forms, notices or documents under this Act or any rule made under this or any other Act is sufficient. 1999, c. 12, Sched. B, s. 16 (9).