PSGB#2017-0094

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

St. Amant

Complainant

• and -

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

Employer

BEFORE

Reva Devins

Vice Chair

FOR THE COMPLAINANT

Peter A. McSherry Law Office Counsel

FOR THE EMPLOYER

Henry Huang Treasury Board Secretariat Legal Services Branch Counsel

TELECONFERENCE

September 25, 2017

Decision

1The Complainant was previously employed with the Ministry of Community Safety and Correctional Services, (the “Ministry”), until she resigned in 2012 to pursue employment opportunities outside of Ontario. She was rehired by the Ministry in 2015 at a starting salary that was confirmed in her letter of employment dated November 12, 2015 and received on November 18, 2015.

2Ms. St. Amant sent a letter to her Deputy Minister dated January 5, 2017, which was received on January 10, 2017, giving notice of her intention to file a complaint regarding the adequacy and fairness of her salary. On agreement of the parties, a motion was heard by conference call in advance of the first scheduled day of hearing to determine preliminary objections raised by the Employer.

Preliminary motion to dismiss the complaint

3The Employer raised a number of preliminary objections to the jurisdiction of the Board to hear this complaint, including non-compliance with the mandatory requirements for filing a complaint set out in s. 8(4) 3 of Regulation 378/07 (the “Regulation”) of the Public Service of Ontario Act, 2016 (“PSOA” or the “Act”). Section 8(4) 3 of the Regulation provides that a complainant must notify the designated person or entity of their complaint about a working condition or term of employment within 14 days of becoming aware of the working condition or term of employment giving rise to the complaint.

4The Employer took the position that the Complainant was required to give notice of her complaint within 14 days of receiving confirmation of her salary in 2015. Counsel for the Complainant maintained that Ms. St. Amant raised concerns about her salary from the onset of her re-employment with the Ministry but was repeatedly assured by management that her concerns would be addressed following a government wide review on compensation. Once the review was completed, Ms. St. Amant continued to wait for resolution at her manager’s urging, however, she eventually grew tired of waiting and filed her notice of intention to file this complaint with the Deputy Minister in 2017.

5Counsel for Ms. St. Amant noted that there was no documentary evidence that she was promised an increase in salary. Counsel also candidly acknowledged that the last conversation that Ms. St. Amant recalls where she was told by her supervisor that a raise was forthcoming was at the end of November or the beginning of December, 2016. On the basis of this admission, Counsel accepted that notice given to the Deputy Minister in January 2017 would not meet the 14 day filing requirement set out in the Regulations.

Decision

6The Public Service Grievance Board has consistently found that the Regulations under which it operates incorporate strict rules that must be followed before a complaint is properly before it. The Employer in this instance has raised a number of grounds on which it asserts the complaint should be dismissed. However, based on the acknowledgment of key facts by the Complainant with respect to the first preliminary objection, the timing of her notice of intention to file a complaint with her Deputy Minister, it is not necessary for me to consider the remaining issues.

7Having considered the submissions of the parties, I have determined that the Employer’s motion must be allowed and that the Board does not have the authority to hear the complaint on the merits. Complaints that come before this Board are governed by PSOA and the Regulations that are passed in relation to that Act. Only certain complaints are authorised for determination and there are strict rules that govern the filing of complaints.

8The relevant rule in this case is found in sections 4(1) and 8(4) of the Regulation. The pertinent sections are as follows:

Complaint about a disciplinary measure

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 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

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:

3. For a complainant 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.

9As I noted in Strong v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2016), P-2015-0638, “The Board has previously considered the filing requirements contained in the Regulation and determined that they are mandatory and that failure to adhere to these requirements deprives the Board of jurisdiction to hear the complaint.” In fact, Ms. St. Amant, the current complainant, was also the complainant in one of the early and leading decisions of the Board on this issue: St. Amant v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), (2013), P-2012-0601, (Carter). See also, Bourgeault et al. v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2013), P-2012-3326, (O’Neil), in which the Board followed the conclusion in St. Amant and held 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).

10In this case, the Complainant accepted that on her own best evidence she did not give the Deputy Minister notice of her intention to file a complaint about her salary within the designated time frame. Her counsel submitted that she did not have to file her notice immediately after receiving written confirmation of her salary in 2015, but rather that the triggering event was her last conversation with respect to her request for a salary increase in late November or early December of 2016. Leaving aside the issue of whether counsel for the Complainant or the Employer is correct about whether the Complainant should have filed her intention to complain about her salary in 2015, she was still beyond the permissible period when she notified the Deputy Minister of her intention to complain in January of 2017, more than 14 days after the date in late November or early December 2016 that she relied upon as the date that triggered her obligation to file.

11Compliance 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; moreover, the Board does not have the option of relieving against strict compliance with the notice provisions. I find that the Complainant did not give notice of her intention to file a complaint within the timeframe required under s. 8(4) of the Regulation and that I consequently do not have jurisdiction to hear her complaint.

12The Employer’s motion is allowed and the complaint is dismissed.