PSGB#2016-0617
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Douglas Horner
Complainant
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Marilyn A. Nairn
Vice Chair
FOR THE COMPLAINANT
Douglas Horner
FOR THE EMPLOYER
Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel
SUBMISSIONS
July 22, 2016
Decision
1The Complainant, Douglas Horner, is employed by the Ministry of Community Safety and Correctional Services ("CSCS" or the "employer"). He works as a Sergeant at the Ottawa Carlton Detention Centre. His complaint to the Board asserts that the employer failed to properly compensate him under sections 21 and 22 of the Compensation Directive applicable to managers.
2The claim relates to a period from January 1, 2015 to January 21, 2016 during which time the Complainant asserts that he was not properly compensated for stand by and/or on call pay. By way of remedy, the Complainant seeks payment for all hours he asserts were not properly compensated over the period ending January 21, 2016.
3It appears that on April 29, 2016 the Complainant sent a Notice of proposal to file a complaint to the Deputy Minister raising these issues. This complaint was filed on June 10, 2016. By letter dated June 22, 2016 the Board forwarded a copy of an earlier decision (Hasted vs. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) 2016 CanLII 7473 (ON PSGB)) requesting that the Complainant review that decision as the circumstances appeared to be similar, and to forward his submissions by July 22, 2016 as to why his complaint differed.
4The Board's letter went on to advise that, based on the Complainant's submission, the Board may:
dismiss the complaint without a hearing, if the submissions regarding the complaint are not received by the Board on or before the date set;
decide that there is a need for a hearing to deal with any issue;
request further submissions from the Complainant and/or the employer before deciding whether or not to hold a hearing;
dismiss the complaint without a hearing if the Board determines that it does not have jurisdiction over the complaint, for timeliness or other reasons, or that it does not make out an arguable case for the remedy sought.
5No response has been received from the Complainant to the Board's direction contained in that letter.
6Ontario Regulation 378/07, made pursuant to the Public Service of Ontario Act, 2006, as amended, authorizes the Board to hear complaints about a working condition or term of employment. However, it sets particular parameters regarding the filing of a complaint as follows:
Complaint about a working condition or a term of employment
- (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,
(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint...
Notice of proposal to file a complaint
(1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity:
A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.
(4) The notice must be given within the following period:
- 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.
7The Board has previously determined that this 14-day time limit for providing a Notice of proposal to file a complaint is mandatory and that the Board has no discretion to relieve against the time limit. A failure to adhere to the time limit deprives the Board of jurisdiction to entertain the complaint. See the Board's decisions in St. Amant v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB) and Bourgeault et al. v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 84294 (ON PSGB).
8On its face, the complaint alleges a failure to pay certain compensation owing, up until January 21, 2016. In the decision in Hasted, supra, the Board noted:
25...There was no continuing breach of the alleged entitlement after January 2014, as the working condition was no longer engaged. Neither complainant continued to perform on call duties at TCI after January 2014. Yet they seek compensation for the entire period of their assignment, a remedy that may well not have been available to them had they raised the issue during their assignment.
26I am persuaded that, in the circumstances here, a timely notice of proposal to file a complaint was required to have been filed no later than 14 days following the end of the Acting Deputy Superintendent assignment at TCI, or, no later than 14 days from the date of payment reflecting the completion of that assignment. In either case, the July 2014 Notice was well beyond a timely date.
9Similarly, in this case, the conduct complained of ended on January 21, 2016. Compensation sought for any period claimed would have been payable during the following pay period, or shortly into February 2016 at the latest. The Notice of proposal to file a complaint was not sent until April 29, 2016, well beyond a 14-day time limit from the end of the assignment claimed.
10Nor is there any response to the Board's letter indicating that there are any other circumstances for the Board to consider in assessing the timeliness issue. The Board must deal with the complaint on its face and pursuant to the direction provided to the Complainant.
11I find therefore, that the complaint is untimely as the Notice of proposal to file a complaint was not sent within 14 days of the date of the last failure to pay complained of, the latest point at which the matter would have been "brought to a head" (see para. 9 of St. Amant, supra). There is nothing in the complaint or in any response to the Board's inquiry to suggest that the Complainant was not aware of the working term or condition of employment giving rise to the complaint by that time.
12This complaint is therefore dismissed.
Dated at Toronto, Ontario this 1st day of December 2016.