P-2010-1500, P-2010-1501, P-2010-2469, P-2011-0942, P-2011-0943, P-2011-0944, P-2011-0945, P-2011-0946

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Daniel Muldoon

Complainant

• and -

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

Employer

BEFORE

Donald D. Carter

Chair

FOR THE COMPLAINANT

Daniel Muldoon

FOR THE EMPLOYER

Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

October 5, 2011.

Decision

1This decision deals with a preliminary issue raised by the employer. The employer takes the position that the Public Service Grievance Board (PSGB) has no jurisdiction to deal with any of these complaints because the complainant had not given proper notice to his Deputy Minister as required by section 8 of Ontario Regulation 378/07. According to the employer, because of this failure to give proper notice to the Deputy Minister, the grievor was not entitled to file these complaints with the PSGB since the complainant had not satisfied one of the conditions set out in section 4 of Regulation 378/07 – giving notice “in accordance with section 8 of his or her proposal to file the complaint”. The relevant sections of Ontario Regulation 378/07 are set out below:

Definitions

1. In this Regulation,

“complainant” means a person who files a complaint with the Public Service Grievance Board or who gives notice in accordance with section 8 of his or her proposal to file a complaint;

“complaint about a disciplinary measure” means a complaint described in subsection 3 (1);

“complaint about a working condition or a term of employment” means a complaint described in subsection 4 (1);

“complaint about dismissal for cause” means a complaint described in subsection 2 (1);

“complaint under Part V of the Act (Political Activity)” means a complaint that may be filed with the Public Service Grievance Board under subsection 104 (3) of the Act;

“complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing)” means a complaint that may be filed with the Public Service Grievance Board under subsection 140 (3) of the Act. O. Reg. 378/07, s. 1.

Complaints Authorized by This Regulation

Complaint about dismissal for cause

2. (1) A person who is aggrieved by his or her dismissal for cause under section 34 of the Act may file a complaint about the dismissal for cause with the Public Service Grievance Board,

(a) if the person is eligible under sections 5 and 6 to file such a complaint;

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

(c) if the person complies with the filing requirements set out in section 10. O. Reg. 378/07, s. 2 (1).

(2) Subsection (1) does not affect the right of a 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. 2 (2).

Complaint about a disciplinary measure

3. (1) A public servant who is aggrieved by the imposition of a disciplinary measure under section 34 of the Act, other than dismissal for cause, may file a complaint about the disciplinary measure with the Public Service Grievance Board,

(a) if the public servant is eligible under section 5 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. O. Reg. 378/07, s. 3 (1).

(2) Subsection (1) does not affect the right of a public servant 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. 3 (2).

Complaint about a working condition or a term of employment

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. O. Reg. 378/07, s. 4 (1).

(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. O. Reg. 378/07, s. 4 (2).

(3) Subsections (1) and (2) do not affect the right of a public servant 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. 4 (3).

Eligibility to File a Complaint

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).

2At the outset of the hearing, the employer presented full argument to support its preliminary objection to the PSGB’s jurisdiction over these complaints. The employer’s position, simply put, was that section 8 of Regulation 378/07 made notice to a complainant’s Deputy Minister a mandatory requirement that constituted an essential condition of the PSGB’s jurisdiction over that complaint. Moreover, this step in the process could not be delegated by a Deputy Minister and indeed had not been delegated as evidenced by the Ministry’s Delegation of Authority Framework Human Resources document. Given that the complainant had not provided notice to his Deputy Minister in respect of any of these complaints, the employer argued that these complaints should be dismissed for lack of jurisdiction since, by virtue of section 4 of Regulation 378/07, notice to the Deputy Minister was an essential precondition of the PSGB’s jurisdiction.

3In reply, the complainant conceded that he had not given notice to the Deputy Minister in respect to any of these complaints. However, he argued that the employer’s preliminary objection should be dismissed because it had not complied with the PSGB’s procedural decision dated March 30, 2011. That decision provided as follows:

These grievances came before the Board on March 30, 2011 in order to schedule them. The parties agreed to consolidate the grievances for the purposes of dealing with preliminary motions of the employer on October 5, 2011.

Further, the parties have undertaken to provide each other with the following:

1. The Employer will notify the complainant of the number of preliminary motions to be argued on October 5, 2011 including a summary statement of each motion by July 29, 2011.

2. The Employer will provide any and all documents it intends to rely on in the motions by July 29, 2011.

3. The Complainant will advise the Employer and the Board by September 16, 2011, whether he intends to oppose the motions or not.

4In particular the complainant pointed out that he had not received the Delegation of Authority Framework Human Resources document that the employer had referred to in its argument. However, any failure by the employer to comply with this undertaking by not providing this document in advance of the hearing could not give the PSGB jurisdiction over these complaints if in fact Regulation 378/07 did not give it jurisdiction in the first place. At most any failure of the employer to comply with the undertaking gives rise to a requirement to provide the complainant with an opportunity to respond to it once it is provided. As a result, in light of the employer’s failure to provide Delegation of Authority Framework Human Resources document to the complainant by July 29, 2011, the Board ruled that it would be appropriate and consistent with the rules of natural justice to provide the grievor with the opportunity to make written submissions on this document’s relevance and to make any further written submissions to the Board provided that these submissions were made within 30 days of the hearing date of October 5, 2011.

5On November 3, 2011, the Board received a letter from the complainant requesting a 60-90 day extension of the deadline for submissions. The gist of this request was that 30 days was not sufficient time to prepare adequate legal argument in response to the employer’s preliminary objection. The Board has considered this request and has determined that it should not be granted. At the hearing, the complainant had the benefit of hearing the employer’s complete legal argument. This argument was not complex and one that almost exclusively related to the interpretation of Regulation 378/07. The employer only referred to the Delegation of Authority Framework Human Resources document to make the point that it had not in fact delegated the power of the Deputy Minister to receive notice of a complaint. The Board considers that the complainant has been given more than adequate time to respond fully to all of the employer’s arguments.

6The Board now turns to the employer’s preliminary objection. In an earlier decision, the Board dealt with the legal implications of the requirement to give notice of a complaint to the Deputy Minister. In Jackson v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 8 the Board made it clear that notice to the Deputy Minister was an essential precondition for it to take jurisdiction over a complaint. At paragraph 38 of that decision, the Board stated:

Furthermore, 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.

7The Board notes that this decision was made available to the complainant at the hearing and he had full opportunity to make submissions on its implications. The Board also notes that the complainant at the hearing conceded that he had not given notice to the Deputy Minister in respect to any of the complaints dealt with in this decision. Given that the required notice was not given by the complainant in respect of any of these complaints, the legal consequences are that the complainant was not eligible to file these complaints with the Board so that these complaints are not properly before the Board.

8For these reasons all of these complaints must be dismissed.