PSGB#2016-0606

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Whissell

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

Alain Whissell

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

March 7, 2017

Decision

1The complainant, Alain Whissell, 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 (“OCDC”). 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. The claim relates to a period from January 1, 2015 to January 21, 2016 and seeks payment for standby and/or on call pay for all hours the complainant asserts were not properly compensated over that period.

2This application was filed on June 13, 2016. By letter dated June 21, 2016 the Board forwarded a copy of an earlier decision (Hasted v 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 as to why his complaint differed.

3The Board received a response from the complainant dated July 20, 2016. It asserts that the complainant became aware of the circumstances giving rise to his complaint several days after the release of the Board’s decision in Huppmann v Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 27640 (ON PSGB) on April 14, 2016. It further asserts that there was a meeting of all Sergeants regarding this and other issues and that ‘we’ were told to wait 6-8 weeks after final compensation was complete and ‘we’ would be made whole. It further states that the employer should not be absolved from responsibility for failing to act in good faith regarding the circumstances.

4During this period a significant number of applications had been received by the Board from Sergeants at OCDC raising the same allegations. The Board reviewed those applications and four applications were set down for hearing on January 17, 2017, at which time the parties’ evidence and submissions were heard. A decision with respect to those applications, cited as Ashdown et al and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) was released on February 3, 2017. Following the release of that decision, the Board, on February 7, 2017, again wrote to the complainant asking him to review that decision and forward his submissions as to why his complaint differed by no later than March 7, 2017.

5That letter advised that, based on the complainant’s submission, the Board may:

1. dismiss the complaint without a hearing, if the submissions regarding the complaint are not received by the Board on or before the date set;

2. decide that there is a need for a hearing to deal with any issue;

3. request further submissions from the complainant and/or the employer before deciding whether or not to hold a hearing;

4. 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.

6No response has been received from the complainant to the Board’s direction contained in that most recent letter.

7Ontario 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 and strict parameters regarding the filing of a complaint as follows:

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,

(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

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.

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

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.

8The 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 decision in St. Amant v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB) and paragraph 28 of Bourgeault v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 84294 (ON PSGB).

9On its face, the application alleges a failure to pay certain compensation up until January 21, 2016. In its decision in Hasted, supra, the Board found:

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.

10Similarly, in this case, the conduct complained of ended on January 21, 2016. Compensation claimed would have been payable during the following pay period, or shortly into February 2016 at the latest. Notice of proposal to file a complaint was not sent to the appropriate Deputy Minister until May 1, 2016, well beyond 14 days from February 2016. In Ashdown et al, supra, the Board found:

25On the evidence before me, I find that the complainants were in a position to investigate and challenge the employer’s position during the period claimed. As such, their claim falls squarely within the decision in Hasted and must fail. They were aware or ought reasonably to have been aware that they were not being compensated in the circumstances that they now claim apply. As stated, they were in a position to investigate and challenge the asserted failure to pay. It is incumbent on a complainant to act in order to preserve a complaint by meeting the 14-day time limit for giving the notice of proposal to file a complaint…

11On that basis, this application is untimely. However, in addition, virtually identical allegations of a meeting and a representation to wait 6-8 weeks were made here as were made in the applications leading to the decision in Ashdown et al, supra. In each of those applications, Notice of proposal to file a complaint was given on April 29, 2016. The decision in Ashdown et al, supra, further finds:

26The complainants argued the time limits issue based on the discussions held with the employer in January 2016. The complainants asserted that they were entitled to rely on the representation made by Mr. GlynWilliams and that they gave notice to the Deputy Minister because they realized, in reading the Huppmann decision, that the employer was not intending to compensate them. It may be that, in reading the Huppmann decision, the complainants became aware that the employer had taken the position in that case that standby and on call were not payable for the period in question and that the Board had made a limited finding to the contrary. However, that does not account for the fact that, in respect of any representation made by Mr. GlynWilliams, the complainants were expecting a response from the employer by mid-March 2016 and did not give notice until April 29, 2016.

27The complainants asserted that they trusted the employer to respond within the time frame that Mr. GlynWilliams had indicated, that is, 6-8 weeks from January 11, 2016. There may be an issue as to whether an excluded employee can rely on a representation by the employer to wait and thereby not run afoul of the time limits under the Regulation. However, even assuming that the complainants were entitled to rely on the representation from Mr. GlynWilliams with respect to their claim for standby and on call pay, a response was expected by no later than March 7, 2016, 8 weeks following the January 11, 2016 meeting. The issue crystallized at that time as neither a response nor compensation was forthcoming. Yet the April 29, 2016 notice of proposal to file a complaint was not given for a further 8 weeks, well beyond a 14-day time limit, rendering the complaints untimely on that basis as well.

12From a review of the particulars in this application, it is clear that the complaint arises out of the same circumstances and at the same institution as those heard in the Ashdown et al case. No other or different particulars are identified in the original application or in the July 20, 2016 letter. There is no response to the Board’s subsequent direction and therefore no other circumstances for the Board to consider in assessing the issue of its jurisdiction over this application or differentiating it from those considered in Ashdown et al, supra. Based on the material before the Board, the findings in Ashdown et al apply equally here. The application is untimely, as the Notice of proposal to file a complaint was not given until May 1, 2016, which, in the circumstances, is well beyond the 14-day mandatory time limit set out in the Regulation.

13I find, therefore, that the Board has no jurisdiction to entertain this application and it is hereby dismissed.