P-2012-0601

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

St. Amant

Complainant

• and -

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

Employer

BEFORE

Donald D. Carter

Chair

FOR THE COMPLAINANT

Lori St. Amant

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel

WRITTEN SUBMISSIONS

Employer: January 3 & 15, 2013. Complainant: January 10 & 27, 2013.

Decision

1The complainant, on November 16, 2011, had requested an unpaid leave of absence for the period November 26, 2011, to December 16, 2011. The reason stated on the form that she submitted was given as “TEMP EMPLOYMENT WITH YUKON GOVT”. The employer did not provide an answer to this request in time for her to assume that employment and, as a result, she sent an e-mail, dated December 17, 2011, to her Superintendent, Robyn Kasha. The e-mail stated:

“I just wanted to inform you that I will not be going to Whitehorse CC, as we were not able to come to an agreement for my position. Thank you for all your efforts to make this happen.”

2That e-mail did not end the matter. On January 20, 2012, the complainant sent a letter to her Deputy Minister informing him that she was filing a complaint concerning the employer’s failure to provide a timely answer to her request for an unpaid leave. The complainant alleged that, because of this failure, she had lost out on the training experience at the Yukon facility and a chance for a permanent position at that facility. The date stamp on this letter indicates that it was logged as received by the Deputy Minister’s Office on February 3, 2012.

3This 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 this complaint because the complainant had not given notice to her Deputy Minister within the time limits required by section 8 of Ontario Regulation 378/07. That provision provides that notice of a proposal to file a complaint “must be given……..within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint”. The employer submitted that in this case, regardless of whether notice of the complaint should be considered to have been given on January 20 or February 3, any notice of a proposal to file a complaint still fell outside the required 14 day period. The employer argued that, because of this failure to give timely notice to the Deputy Minister, the grievor was not entitled to file this complaint 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).

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).

4The gist of the employer’s argument was that the combined effect of section 4 and section 8 of Regulation 378/07 was to make timely notice to a complainant’s Deputy Minister a mandatory requirement and that compliance with this requirement constituted an essential condition for the PSGB’s jurisdiction over this complaint. Furthermore, according to the employer, the PSGB had no jurisdiction to relieve against this mandatory time limit because express statutory authority to extend time limits had been removed from the Board in 1996 by the revocation of section 54 of Regulation 977. Arguing that the complainant in this case had not provided timely notice to her Deputy Minister in respect of this complaint and that the Board had no authority to extend this time limit, the employer submitted that this complaint should be dismissed because, by virtue of Regulation 378/07, timely notice to the Deputy Minister was an essential precondition of the PSGB’s jurisdiction over this matter.

5In reply, the complainant submitted that the Board had authority to extend the time limit and any failure to comply with the required time limit was based on lack of knowledge and information as the grievance had been filed following “a series of stressful discussions with fellow colleagues, friends and relatives”. Moreover, regardless of the time limits, her grievance was substantial and warranted compensation.

6In an earlier decision, the PSGB 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.

7A similar approach was taken by the PSGB in the later case of Muldoon v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 13 where the complainant had failed to give the required notice in respect of several complaints. The Board stated in that case:

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.

8In both of these recent cases, the Board has held that the combined effect of sections 4 and sections 8 of Regulation 378/07 was to make proper notice of a complaint a matter going to its jurisdiction. In these two cases, however, there had been a complete failure to give any notice while in this case notice had been given but given outside the required time limits. The Board does not consider that this difference changes the outcome for this complaint. Given the mandatory language of the 14 day time limit set out in section 8, the Board must conclude that notice given within that time limit is also just as much a precondition for it to assume jurisdiction over a matter as the requirement to give the notice.

9The essence of this complaint is the employer’s failure to provide a timely answer to the complainant’s request for an unpaid leave of absence. In this case, the grievor was well aware of this situation by the time she sent an e-mail to Robyn Kasha on December 17, 2011, in which she indicated that she would not be taking the position in Whitehorse. By that time, the employer’s failure to provide a firm answer to her request for an unpaid leave had brought the matter to a head as the delay had made it impossible for her to undertake the required training for the position. From these facts the Board concludes that by December 17, 2011, the complainant had become aware of the working condition or term of employment that would later give rise to the complaint and at that point the 14 day time limit set out in section 8 began to run. However, it was not until January 20, 2012, that she wrote to the Deputy Minister setting out her complaint and the evidence indicates that this letter was not marked as received until February 3, 2012. It is clear from these facts that any notice given to the Deputy Minister by the complainant fell outside the 14 day time limit required by section 8 of Regulation 378/07.

10There still remains the issue of whether the PSGB has any authority to extend the time limits set out in section 8 of Regulation 378/07. Even though the Board’s statutory power to extend time limits had been revoked in 1996, there are PSGB decisions arising during the period from 1996 until Regulation 378/07 came into force where the Board exercised discretion to extend time limit. These cases, however, all dealt with the time limits set out in former Regulation 977 and these time limits had been clearly expressed in directory language. The language used to prescribe time limits in the new Regulation 378/07, however, is significantly different and leaves no doubt as to its mandatory nature. This choice of mandatory language can lead to no other conclusion than that compliance with these time limits is a precondition to the PSGB assuming jurisdiction over a matter. Given the mandatory nature of these time limits and the lack of any express statutory authority to relieve against these mandatory time limits, the Board must conclude that it has no power to alter the jurisdictional consequences of a failure to comply with the 14 day time limit. It is for this reason that this complaint must be dismissed. This conclusion is in no way a reflection on the merits of the complaint itself but merely a determination that the Public Service Grievance Board, as a tribunal created by statutory enactments, can only stay within the limits of these enactments.