P-2013-1411

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

John Hauth

Complainant

• and -

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

Employer

BEFORE

Donald D. Carter

Chair

FOR THE COMPLAINANT

John Hauth

FOR THE EMPLOYER

Kevin Dorgan Ministry of Government Services Legal Services Branch Counsel

WRITTEN SUBMISSIONS

August 28, September 30, October 16, 2013

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 this complaint because the complainant did not file a notice of proposal to file a complaint within the time limits required by section 8 of Ontario Regulation 378/07, and because he did not subsequently file a complaint with the Public Service Grievance Board within the time required by section 10 of that same Regulation. 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).

2In three recent cases, the Public Service Grievance Board considered the legal implications of the requirement imposed by section 8 of Regulation 387/07 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.

3A similar approach was taken by the PSGB in a second case, 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.

4In both of the above cases, there had been a complete failure to give any notice to the Deputy Minister, and the Board held that the combined effect of sections 4 and sections 8 of Regulation 378/07 was to make giving notice of a complaint an essential condition of its jurisdiction. In the third and most recent case, St. Amant v. Ontario (Ministry of Community Safety and Correctional Services) [2013] O.P.S.G.B.A. No. 2, the Board dealt with the situation where notice had been given but that notice fell outside the required time limits. The Board stated in that case:

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.

5The complainant did not dispute the employer’s contention that in this case he had received a ten-day suspension on September 27, 2012, and that his notice of a proposal to file a complaint was filed on November 21, 2012, with his Deputy Minister. The filing of this notice was clearly well outside the 14 days stipulated by section 8(4) 2 of Regulation 378/07. As the Board held in the St. Amant case, notice within that time limit is a precondition for the Board to assume jurisdiction over a complaint. The late filing of this notice means that the complainant was not authorized by that Regulation to file a complaint with the result that the Board has no jurisdiction to deal with it.

6The language used to prescribe time limits in the new Regulation 378/07 leaves no doubt as to its mandatory nature. 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 has no power to alter the jurisdictional consequences of a failure to comply with the time limits set out in section 8 of that Regulation. 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.