PSGB#2015-1620

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Berezowsky et al

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

John Hasted

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 9, 2017

Decision

1This is a complaint filed by a group of Operational Managers (“OMs”) (now referred to as Sergeants) from the Ontario Correctional Institute (“OCI”), claiming pay and damages for a period of standby that was cancelled by the employer. The employer raised a preliminary objection with respect to the timeliness of the complaint. I heard the parties’ evidence and submissions with respect to both the preliminary objection and the merits of the complaint.

2There is no dispute that on or about May 14, 2015, the OMs were told that they would be required to be on standby for the period from Friday, May 15, 2015 at 0600 hours until Monday, May 18, 2015 at 0600 hours. This was a decision affecting all OMs across the province, and arose as a result of the uncertainty around the then ongoing collective bargaining negotiations between the OPSEU correctional bargaining unit and the employer.

3There is also no dispute that on Sunday, May 17, 2015 the complainants, as well as all other OMs across the province, were advised that the standby was cancelled effective 1900 hours that day, to resume on Tuesday, May 19, 2015 at 0600 hours. Monday, May 18, 2015 was a statutory holiday. As a result, the OMs were not on standby for any part of the statutory holiday.

4The employer asserted that it had a valid business purpose for cancelling the standby, noting that the standby had been both implemented and cancelled across the province and that financial considerations and employee morale were both legitimate business considerations. The complainants, in evidence, indicated that they had no evidence to dispute the assertion, other than indicating that they had not been advised of any reason and that, to their knowledge, the circumstances giving rise to the standby (the state of collective bargaining negotiations) had not changed.

5A notice of proposal to file a complaint was given to the appropriate Deputy Minister on June 12, 2015. The complainants asserted that the cancellation of standby adversely affected their personal plans. They sought relief in the form of full payment for the 11 hours of standby that had been cancelled as well as damages. On June 25, 2015 the Deputy Minister issued a decision denying the claim. This complaint was filed on July 21, 2015.

The Preliminary Issue

6The employer argued that the Board had no jurisdiction to entertain the complaint, as it was untimely on two bases. First, it argued, the notice of proposal to file the complaint was given to the Deputy Minister outside the 14-day time limit required by section 8 of Ontario Regulation 378/07 (the “Regulation”). Second, the employer argued, the complaint was filed with the Board outside the 14-day time limit required by section 10 of the Regulation. The employer, relying on the Board’s decisions in Hasted v. Ontario (Community Safety and Correctional Services), 2016 CanLII 7473; Ois v. Ontario (Community Safety and Correctional Services), 2014 CanLII 76835; and Burkholder v. Ontario (Government Services), 2013 CanLII 84293, argued that both time limits were mandatory and that the Board had no discretion or authority to relieve against those time limits, resulting in the Board having no jurisdiction to hear the complaint.

7The complainants argued that the Board had previously indicated that all individuals had to sign a complaint and that, as OMs worked shifts, it took additional time to acquire each of their signatures on the complaint. The complainants otherwise left the determination of the timeliness issue to the Board.

8In reply, the employer noted that, at best, any extra time taken to acquire signatures on the complaint could only go to an issue of whether there could be sufficient reason to relieve against a time limit. While not agreeing that this circumstance provided such sufficient rationale, the employer argued that it was irrelevant in any event, as the Board had no discretion to relieve against the mandatory time limits set out in the Regulation.

9Based on the evidence before me, I must find that the Board does not have the jurisdiction to entertain this complaint. Ontario Regulation 378/07 provides, inter alia, 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; and

(c) if the public servant complies with the filing requirements set out in section 10. O. Reg. 378/07, s. 4 (1).

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.

(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. 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).

(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).

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).

10The complainants were notified on May 17, 2015 that the period of standby was cancelled. The notice of proposal to file the complaint was given on June 12, 2015, some 26 days later. There was no assertion by the complainants that they only became aware of the circumstances giving rise to their complaint at some point later than May 17, 2015. As such, the 14 days runs from that date. June 12, 2015 is beyond the 14-day time period stipulated by section 8 of the Regulation. The Board has held on a number of occasions that the time limit is mandatory and that it has no authority to relieve against the time limit. Further, the Board has held that the failure to meet the time limit deprives the Board of jurisdiction to entertain the complaint. In Hasted, supra, the Board stated:

18For the reasons that follow, I find that the notice of proposal to file a complaint in this case was not given in a timely manner. The cases referred to establish clearly that the time limits for filing a notice of proposal to file a complaint, set out in sub-section 8(4) of Regulation 387/07, are mandatory and that the Board has no discretion to relieve against those time limits. The decision in John Hauth, supra, concludes:

2In three recent cases, the Public Service Grievance Board considered the legal implications of the requirement imposed by section 8 of 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…If the complainant was not eligible to file the grievance, there is no grievance properly before the Board, and it must be dismissed.

3A 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 failed to give the required notice in respect of several complaints…

4In both of the above cases, there had been a complete failure to give any notice to the Deputy Minister, 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.

5The complainant did not dispute the employer’s contention that in this case he had received a ten-day suspension on September 27, 2012, and that his notice of a proposal to file a complaint was filed on November 21, 2012, with his Deputy Minister. The filing of this notice was clearly well outside the 14 days stipulated by section 8(4) 2 of Regulation 378/07. As the Board held in the St. Amant case, notice within that time limit is a precondition for the Board to assume jurisdiction over a complaint. The late filing of this notice means that the complainant was not authorized by that Regulation to file a complaint with the result that the Board has no jurisdiction to deal with it.

6The language used to prescribe time limits in the new Regulation 378/07 leaves no doubt as to its mandatory nature. Given the mandatory nature of these time limits and the lack of any express statutory authority to relieve against these mandatory time limits, the Board has no power to alter the jurisdictional consequences of a failure to comply with the time limits set out in section 8 of that Regulation. 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.

(emphasis added)

19These decisions make it clear that, unless the notice of proposal to file a complaint is filed within the regulatory time limit, the Board has no jurisdiction to consider the complaint. They also make clear that the Regulation intended to impose strict time lines for the filing of a notice of proposal to file a complaint, putting the employer on timely notice of an issue and removing any ability of the Board to extend that time limit.

11The comments cited from paragraph 19 of the decision in Hasted above apply equally in this case.

12Similarly, the Board has found that a failure to meet the time limit for filing the complaint at the Board is fatal to the Board’s jurisdiction to entertain the complaint. In this case, the Deputy Minister provided his decision on June 25, 2015. The complaint was not filed with the Board until July 21, 2015, some 26 days later. The fact that there may have been a delay in acquiring signatures on the complaint is irrelevant to the application of the Regulation. Section 4 of the Regulation makes it clear that a complainant may file a complaint concerning a working condition or term of employment if he or she complies with the time limits set out in both sections 8 and 10 of the Regulation. Section 10 stipulates a time limit of 14 days for the filing of a complaint with the Board following the end of the dispute resolution process. In this case, that process ended on June 25, 2015 with the issuance of the written decision from the Deputy Minister denying the claim.

13In Burkholder, supra, the Board found:

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...

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… 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.

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 1 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.

14Section 2 of the Regulation, referred to in Burkholder above, provides for complaints concerning a dismissal from employment. Section 4 of the Regulation is its equivalent with respect to complaints about a working condition or term of employment, the only category within which this complaint could fall. By failing to meet the time limit set out in section 10 of the Regulation, the complainants, by virtue of section 4 of the Regulation, are not eligible to file the complaint with the Board. In the result, the Board has no jurisdiction to entertain the complaint.

15Therefore I find that this complaint must be dismissed as untimely, both because there was a failure to meet the time limit set out in section 8 of the Regulation and, further, because there was a failure to meet the time limit set out in section 10 of the Regulation. In the result, the Board has no jurisdiction to entertain the complaint.

16Having regard to that finding, the Board is unable to deal with the merits of the complaint, as it has no jurisdiction to entertain the complaint. The complainant’s concern related to the reasonableness of the employer cancelling standby on short notice and over a long weekend in circumstances where the OMs had been required to remain on standby for significantly longer periods than usual due to the uncertainty around the ongoing collective bargaining and where the cancellation allegedly came too late for OMs to make use of the time off. Section 22 of the Compensation Directive provides that OMs are subject to stand by if authorized by their supervisor and are thereby eligible to be compensated for such standby. I simply note however, that section 22 makes no provision for payment should standby be cancelled, regardless of when it is cancelled. As counsel for the employer noted, the employer may be in a no-win situation with its managers if it anticipates a need for standby over a holiday weekend. Whether it authorizes and directs standby on a day-to-day basis or whether it authorizes and directs standby for an entire weekend period only to later determine that it is able to cancel part of that direction, it will have the effect of disrupting the personal lives of those managers required to stand by. Financial considerations are also legitimate employer concerns.

17Having regard to the finding above that the Board has no jurisdiction to entertain this complaint because it is untimely, this complaint is hereby dismissed.