P-2013-0846

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Donn Burkholder

Complainant

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Donald D. Carter

Chair

FOR THE COMPLAINANT

Marc Sand Sand Executive Services Inc. Counsel

FOR THE EMPLOYER

Roslyn Baichoo Ministry of Government Services Legal Services Branch Counsel

WRITTEN SUBMISSIONS

August 2, September 17, October 9, 2013

Decision

1The complainant was discharged by the employer on April 30, 2012. On May 16, 2012, his Deputy Minister received a Notice of a Proposal to file a Complaint from both the complainant and his representative. These two documents were both dated May 14, 2012, and accepted by the employer. The parties met on June 25, 2012, to discuss the termination. After considering the submissions, the employer responded on August 8, 2012, by advising the complainant that it was upholding the termination. On August 15, 2012, the complainant corresponded with the Public Service Grievance Board by submitting his response to that decision. At that time he was advised by the Board that, if he wished to bring the matter before the Board, he was required to file a Form 1 Application. Approximately ten months later, on June 12, 2013, the complainant filed a Form 1 Application with the Board alleging that he had been terminated while on leave of absence due to an illness and seeking reinstatement to his former job.

2This 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 the Form 1 Application within the time limits required Ontario Regulation 378/07. 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).

3The gist of the employer’s argument was that in this case the combined effect of section 2 and section 10 of Regulation 378/07 was to make a timely filing of the Form 1 Application a mandatory requirement, and an essential condition for the PSGB to assume jurisdiction over this complaint. Furthermore, according to the employer, the PSGB had no jurisdiction to relieve against this mandatory time limit because the express statutory authority to extend time limits had been removed from the Board in 1996 by the revocation of section 54 of Regulation 977. The employer argued that, because the complainant in this case had not filed the Form 1 Application in a timely manner and because the Board had no authority to extend this time limit, this complaint should be dismissed since the effect of Regulation 378/07 was to make timely filing of the Form 1 Application an essential precondition of the PSGB’s jurisdiction over this matter.

4The complainant’s submissions did not address this jurisdictional issue. Instead, it spoke to the circumstances leading up to the termination of his employment. These submissions, however, only have relevance if the PSGB has jurisdiction to deal with the merits of this complaint.

5In three recent cases, the PSGB considered the legal implications of the requirement imposed by 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.

6A 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 also 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.

7In both of these cases there had been a complete failure to give any notice, 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.

8In this case dealing with a late filing of the Form 1 Application, the Board must now consider the effect on its jurisdiction resulting from the interplay of section 2 and section 10 of Regulation 387/07. Section 2 makes it clear that a person aggrieved by a dismissal is only permitted to file a complaint where that person has complied with the filing requirements set out in section 10. Section 10 clearly provides a 14 day window to file the compliant with the Public Service Grievance Board and also provides that the complaint must set out the reasons for the complaint and must include the notice of proposal, if any, to make the complaint and such other information and documents as the Board may specify. Just as initial notice of a complaint to a Deputy Minister is an essential condition of the Board’s jurisdiction, so too is a proper and timely filing of a complaint with the Board. Section 10(2) of Regulation 387/07 makes it clear that a 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. One of the documents clearly specified by the Board is a completed Form 1 Application.

9In this case, a proper complaint using the Form 1 Application was not filed with the Board until June 12, 2012, well outside the mandatory time limit set out in section 10(1) of Regulation 387/07. While the complainant did contact the Board within that time limit, at that time he was immediately advised by the Board of the requirement of the Form 1 Application, leaving him adequate time to file a proper complaint using the Form 1 Application. However, that filing did not occur until approximately ten months later. Because of the combined effect of section 2 and section 10 of Regulation 387/07, this late filing of the complaint means that the complainant was not authorized by that Regulation to file a complaint, thus depriving the Board of any jurisdiction to deal with it.

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 in light of the complainant’s claim that the delay was due to a stress related illness. 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 its discretion to extend time limits. 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.

11Given 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 to file the Form I Application. 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.