PSGB#P-2015-0638

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

David Strong

Complainant

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services )

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE COMPLAINANT

David Strong

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 9, 2016

Decision

1The Complainant has challenged his disciplinary suspension, which was imposed by a letter dated December 19, 2014 and served from December 22, 2014 to January 21, 2015. The Complainant returned to work on January 22, 2015 and sent a letter to the Deputy Minister on February 8, 2015 advising of his intention to dispute his suspension. He alleged that the suspension was harsh and unwarranted, prevented him from working overtime, ignored established guidelines and was based on a flawed investigation.

2The Employer brought a preliminary motion, asking that the complaint be dismissed on the grounds of non-compliance with the mandatory timelines for filing a complaint set out in s. 8(4) 2 of Regulation 378/07 (the “Regulation”) of the Public Service of Ontario Act, 2016 (“PSOA” or the “Act”). Section 8(4) 2 of the Regulation provides that a complainant must give notice of a complaint about a disciplinary measure within 14 days after receiving notice of the imposition of the discipline.

3The Employer took the position that the Public Service Grievance Board (the “PSGB” or “Board”) has consistently found that the Regulations incorporate strict rules that must be followed before a complaint is properly before it. The Employer argued that since the Complainant did not give notice until several weeks after he learned he was suspended, he did not meet the mandatory timelines for filing a complaint prescribed by section 8 of the Regulations. The Employer further argued that the Board has also previously found that it has no discretion to relieve against these timelines. In any event, it was the position of the Employer that the Complainant has not put forward any reasonable explanation for the delay. The Employer submitted that the PSGB therefore has no jurisdiction to deal with the complaint and that it should be dismissed.

4The Complainant did not dispute that he failed to advise the Deputy Minister of his intention to file a complaint regarding his suspension until February 8, 2015. He stated that he did not have access to a computer in the workplace while he was suspended and did not have the Deputy Minister’s email address until he returned. He also believed that by imposing the suspension, the Employer was effectively saying that he should not have any contact with the Ministry until his suspension was completed. Therefore, he argued that the 14-day timeline for filing his intention with the Deputy Minister should not begin until after he served his suspension.

5The Employer replied that giving notice of an intention to challenge a disciplinary measure is not contingent on access to the Employer’s resources. The Complainant could have easily found the Deputy Minister’s contact information, which is available to the public, outside of the workplace. Moreover, he was not restricted to giving notice by email and was free to send his complaint by fax, mail or hand delivery. In any event, the Employer further relied on the express language of s. 8 (4) 2 that requires action within 14 days of receiving notice of the disciplinary measure.

6Having considered the submissions of the parties, I have determined that the Employer’s motion must be allowed. Complaints with the PSGB are governed by PSOA and the Regulations that are passed in relation to that Act. Only certain complaints are authorised for determination by the Board and there are rules that govern the filing of complaints. The relevant rules in this case are found in sections 3(1) and 8(4) of the Regulation. The pertinent sections are as follows:

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,

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

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:

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

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

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

7The Board has previously determined that the filing requirement contained in the Regulation is mandatory and that failure to adhere to it deprives the Board of jurisdiction to hear the complaint. In St. Amant v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2012-0601, issued on January 31, 2013, then Chair Carter considered the time limits and concluded that “compliance with these time limits is a precondition to the PSGB assuming jurisdiction over a matter. Given the mandatory nature of those time limits and the lack of any express statutory authority to relieve against these mandatory 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” (at paragraph 10).

8In Bourgeault et al. v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2012-3326, issued on November 14, 2013, Vice Chair O’Neil followed the Board’s conclusion in St. Amant that “compliance with the procedural steps and time limits set out in the regulation is a precondition to the Board’s assuming jurisdiction over a case” and that the Board “has no power to relieve against or extend those time limits, given the removal of that power from the wording of the current regulation.” (at paragraph 28).

9I agree with the conclusion reached in these earlier cases and find no reason to deviate from the Board’s prior decisions that compliance with the time limits set out in s. 8 (4) of the Regulation is a pre-condition to the Board’s ability to hear a complaint on its merits. Nor does the Board have the option of relieving against strict compliance with the notice provisions.

10In this case, the Complainant was advised on December 19, 2014 that the Employer determined that his actions had given rise to just cause for discipline and that he was being suspended without pay for 20 days. Notice to complain about his suspension had to be filed with the Deputy Minister within 14 days of December 19, 2014 to meet the requirements of s. 8(4) 2. By filing his intention to challenge his suspension on February 8, 2016, after he returned to work, the Complainant clearly failed to satisfy the mandatory timeframe set out in the Regulations.

11While I appreciate that it was easier for the Complainant to advise the Deputy Minister of his intention to complain about his suspension once he returned to work, the Regulation is very specific about when the time limits start: the notice must be given “within 14 days after the complainant receives notice of the imposition of the disciplinary measure”. There is no ambiguity in this provision and I have no discretion to allow for a later filing date.

12I therefore find that the Complainant did not give notice of his intention to file a complaint within the timeframe required under s. 8(4) 2 of the Regulation and I consequently do not have jurisdiction to hear this complaint. The Employer’s motion is allowed and the complaint is dismissed.