PSGB#2016-2281

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Taylor

Complainant

• and -

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

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE COMPLAINANT

James Taylor

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 1, 2017

Decision

1The Complainant, Mr. Taylor, filed a complaint challenging his disciplinary suspension. The matter was set down for mediation and scheduled for August 17, 2017. The Employer subsequently raised an objection that the complaint is untimely and asked for a determination of their preliminary motion prior to the hearing.

2The Complainant acknowledged that his initial complaint was not filed within the required time, but asserted that the Employer could waive their timeliness objection and proceed to mediation. He also filed a further complaint alleging retaliation arising from submissions made by Employer counsel in the course of the timeliness motion.

3The facts in this matter are not in dispute. Mr. Taylor was advised by letter dated November 3, 2016 that the Employer was imposing a disciplinary suspension to be served between November 4 through 10, 2016. The Complainant sent a letter to the Deputy Minister, dated November 22^nd, but received on November 23^rd, 2016, advising of his intention to dispute the disciplinary process that resulted in his suspension.

4The Employer seeks dismissal of the complaint on the grounds of non-compliance with the mandatory timelines for filing a complaint set out in 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.

5The Employer took the position that the 14-day timeline is mandatory, that the Public Service Grievance Board (the “PSGB” or “Board”) has no jurisdiction to extend the timeline and that the complaint should therefore be dismissed prior to the scheduled mediation.

6The Complainant agreed that he did not advise the Deputy Minister of his intention to file a complaint regarding his suspension until November 22^nd or 23^rd, 19 or 20 days after being notified of his disciplinary suspension. He states that he gave local notice to his Superintendent on November 16, but that he made an “error in judgment” regarding the timelines for giving notice to the Deputy Minister.

7The Complainant nonetheless argued that the complaint should not be dismissed. He has filed a second complaint alleging reprisal that, in his view, is related to the current process as it arises from the Employer’s submissions on this motion. He further notes that the Employer “has the ability to withdraw its objection and deal with the mishandling of the whole process” and requests that the Employer proceed with the mediation “to handle the situation as whole”.

8The Employer replied that the Regulation, and previous PSGB decisions, make it clear that notice must be given to the Deputy Minister, not their subordinate or any position below Deputy Minister. With respect to the reprisal complaint, the Employer argued that it was unrelated to the timeliness motion and would be dealt with at the local level for now. The Employer continued to seek dismissal of the initial complaint.

9Having considered the submissions of the parties, I have determined that the complaint must be dismissed.

10All complaints that come before the PSGB are governed by PSOA and the Regulations that are passed in relation to that Act. Only certain complaints are permitted and there are rules that govern the filing of those complaints. The relevant rules are set out in sections 3(1) and 8(4) of the Regulation 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.

11The PSGB has considered the mandatory nature of the Regulations on numerous occasions: St. Amant v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2012-0601; Strong v. The Crown in Right of Ontario (Ministry of Children and Youth Services), P-2015-0638; Plouffe v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2016-0604, Ashdown et al. v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2016-0603. In every instance, the Board has found that the timelines for filing a complaint, including giving notice to the relevant Deputy Minister, are mandatory and that the Board has no jurisdiction to relieve against the strict requirements for filing a complaint.

12In St. Amant, supra, the Board held 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). This view was recently confirmed in separate decisions of the Board in Strong, Ashdown, and Plouffe, supra, reiterating that the requirements for filing complaints are mandatory and that the Board has no discretion to ignore the time limits set out in the Regulation. The Board has also previously determined that notice must be given to the Deputy Minister, not another member of management: Ashdown, supra, at paragraph 20.

13Mr. Taylor acknowledged that he did not file his notice with the Deputy Minister within the required fourteen days. Although the Complainant has urged the Employer to waive its’ objection and proceed to mediation, the Employer has declined to do so. In light of the Board’s consistent interpretation of the governing Regulation, the complaint must be dismissed: failure to comply with the filing timelines deprives the Board of jurisdiction to hear a complaint on the merits.

14Nor can I accept the Complainant’s submission that the matter should proceed because it is related to his reprisal complaint. Whatever the connection between the two complaints, it does not change this Board’s jurisdiction: I still have no authority to hear a complaint that was not filed in compliance with the Regulations. In any event, Mr. Taylor’s reprisal complaint does not depend on the result of this motion. He can still call evidence of the Employer’s submissions and have that matter heard as a distinct complaint.

15Mr. Taylor was notified that he was being suspended by the Employer on November 3, 2016 and notified the Deputy Minister of his intention to dispute the disciplinary process on November 22^nd or 23^rd. Under s. 8(4) of the governing Regulation he was required to give notice to the Deputy Minister within 14 days. Mr. Taylor has failed to comply with the timeframe required by the Regulation and I consequently do not have jurisdiction to hear the complaint regarding his disciplinary suspension.

16The Employer’s motion is allowed, the complaint is dismissed and the mediation on August 17, 2017 is adjourned.