PSGB# P-2013-3116; P-2013-3576; P-2014-0652

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Alemu

Complainant

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT

Zelalem Alemu

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN REPRESENTATIONS

October 10, 19 and 25, 2018

INTERIM DECISION

1This interim decision provides reasons for the granting of an adjournment of a scheduled hearing date and provides further direction to the parties with respect to the complaints filed.

2Four prior hearing dates have been adjourned at the behest of the complainant. The Employer agreed and those hearing dates were adjourned on consent. In each case the complainant asserted that he was unable to attend and participate in the hearing due to medical reasons. The Employer advises that the complainant has been in receipt of LTIP benefits since April 2014 and that its most recent correspondence from Great-West Life, dated July 23, 2018, indicates that the benefits provider was seeking updated medical information from the complainant in order to update his claim.

3The Employer opposed the request to adjourn the scheduled October 30, 2018 hearing date. An interim decision dated October 3, 2018 directed the complainant to support his request for an adjournment by providing sufficient and reliable medical evidence in support of the request, absent which, the matter would proceed as scheduled.

4In response to the Board’s direction, on October 10, 2018 the complainant filed a medical note dated October 3, 2018, indicating that the complainant was under medical treatment and was unable to attend the hearing “due to the severity of his illness”. That note also indicates that the complainant is unable to attend a “conference hearing” or “submit written documents for any hearing for the same reason”.

5The Employer filed a response that took issue with both the reliability and sufficiency of the medical note provided. It questioned how the complainant was able to obtain a note on the same day as the Board’s direction, raising questions as to its legitimacy and quality and whether a true assessment or examination could have been conducted by the physician. The Employer also argued that the complainant’s seeming efficiency in obtaining the note raised questions about his asserted inability to participate in a hearing process in any way. Further, argued the Employer, the note did not respond to the nature of any limitations or restrictions in order to assess whether the complainant could be accommodated and thereby participate in the hearing process. The Employer referred me to the decisions in Hussain and Ontario (Ministry of Community and Social Services), reported at 2012 CanLII 49863 (ON GSB); DiMatteo and Ontario (Ministry of Health and Long-Term Care), reported at 2018 CanLII 55861 (ON GSB); and Clarendon Foundation and OPSEU, Local 593 (Duhaney), 2004 CarswellOnt 10161 (Fisher). It asked that the request to adjourn the hearing be denied.

6In reply, the complainant filed a second medical note and provided some further explanation. In response to some of the concerns raised by the Employer, the complainant wrote that his appointment on October 3, 2018 had been arranged months previously and that the timing of the Board’s decision coincided with that appointment, although he also states that he received the Board’s decision after his visit to the physician that day. He also states that he had earlier tried to arrange a visit to obtain a medical note but had to wait until the October 3 visit as his physician had been on vacation. The complainant noted that the Employer had consented to his prior requests without the need for medical evidence and queried what had changed, asserting that the Employer’s correspondence was stressful and traumatic. He asked the Board to delay a hearing until such time as he is healthy enough to meaningfully represent himself.

7The second medical note states that the complainant suffers from severe restrictions and limitations, which are listed and relate to poor concentration, poor short-term memory and attention span, psychomotor slowing and severe limited energy, reiterating that he is unable to attend the scheduled arbitration hearing, attend any “conference hearing”, or submit any written documents for any hearing. Both notes state that the complainant has been under the physician’s care since April 2014.

8Subject to my comments below, the provision of the second note, taken with the first, was, in my view, sufficient to warrant the adjournment of the scheduled October 30, 2018 hearing date. The information now before the Board distinguishes these circumstances from the cases relied on by the Employer in that more information as to the nature of the restrictions and limitations is available in this case. The complainant made the request in advance. The Employer had not previously opposed any adjournment request. The complainant provided a limited medical note and subsequently sought to respond to the Employer’s concerns by providing a further medical note and explanation. The nature of the identified restrictions and limitations would reasonably affect one’s ability to properly prepare and participate in an oral hearing process where one is self-represented.

9I therefore granted the adjournment of the scheduled October 30, 2018 hearing date and the parties were so advised on October 29, 2018.

10However, having been persuaded that the complainant had provided sufficient medical evidence in support of the adjournment of the oral hearing date, I am much less persuaded that the evidence overall supports a conclusion that the complainant is unable to participate in any way in the conduct of his complaints. Both medical notes state that the complainant is unable to submit written documents for any hearing. Yet the complainant was able to file his complaints and has filed various requests to adjourn scheduled hearing dates. Just recently, he raised his request to adjourn the October 30, 2018 hearing date. He has since twice responded to the Board by providing medical notes as well as his accompanying written explanations. Those explanations are directed to the issues under consideration. Thus he has been able to submit both documentary material and his written submissions, notwithstanding the opinion set out in the medical notes in that regard.

11The Board’s interim decision dated October 3, 2018 notes:

1The complainant filed three successive complaints, dated December 4, 2013, January 27, 2014, and May 21, 2014. Each complaint takes issue with the Employer’s decision to discipline the complainant for alleged ongoing insubordinate behaviour. The discipline imposed was a letter of discipline, a 1-day suspension, and a 3-day suspension. The complaints were initially scheduled before this Vice-Chair for hearing on October 7, 2015…

2…The Employer … asserts that Board Files #P2013-3576 and #P-2014-0652 (the second and third complaints respectively) ought to be dismissed at this stage as untimely. The Employer has filed written representations setting out its understanding of the facts and its submissions in respect of …its assertion that the Board lacks the jurisdiction to entertain the two latter complaints on the basis that their filing was untimely, and… its position as to the appropriateness of the complaint in Board File #P2013-3116 proceeding as it asserts that that complaint is now moot.

12At this stage there is no indication as to when or whether the complainant will return to the workplace. Even the most recent complaint was filed over four years ago. There is a responsibility on a complainant to seek to resolve a complaint or to pursue it. Increasing delay will prejudice a responding party’s ability to respond and, in any event, at some point a responding party is entitled to have the issues dealt with. The complainant is not entitled to simply let these complaints languish or fail to participate by some means in the conduct of his complaints in the absence of medical evidence that is significantly more compelling than what has been provided in light of the evidence of the complainant’s ability to participate by means other than an oral hearing.

13The Employer has set out its understanding of the facts and its position as to why it asserts the Board has no jurisdiction to entertain the complaints filed as Board Files #P2013-3576 and #P2014-0652. Ontario Regulation 378/07 (the “Regulation”) made under the provisions of the Public Service of Ontario Act, 2006 sets out strict timeframes for the filing of complaints before this Board. A copy of that Regulation is attached to this decision as Appendix A.

Board File #2013-3576 – one-day suspension

14The Employer asserts the following as fact:

1. The complainant was given a one-day suspension on November 21, 2013.

2. The complainant filed a notice of proposal to file a complaint with respect to that suspension to the Deputy Minister on November 24, 2013.

3. A meeting was held with the Deputy Minster’s delegate on January 6, 2014.

4. A complaint was filed with the Board with respect to the one-day suspension on January 25, 2014.

15It is the position of the Employer (as set out in its October 2, 2018 written submission at paragraphs 41-45) that the complaint filed as Board File #2013-3576 was not filed in accordance with sections 9(5) and 10(1) of the Regulation and is therefore untimely. It is the Employer’s further position that this complaint must be dismissed as the Board has no jurisdiction to entertain a complaint that is not filed in accordance with the time limits set out in the Regulation.

Board File #2014-0652 – three-day suspension

16The Employer asserts the following as fact:

1. The complainant was given a three-day suspension on February 12, 2014.

2. The complainant filed a notice of proposal to file a complaint with respect to that suspension to the Deputy Minister on February 14, 2014.

3. A meeting was held with the Deputy Minster’s delegate on April 11, 2014.

4. A complaint was filed with the Board with respect to the three-day suspension on May 16, 2014.

17It is the position of the Employer (as set out in its October 2, 2018 written submission at paragraphs 46-50) that the complaint filed as Board File #2014-0652 was also not filed in accordance with sections 9(5) and 10(1) of the Regulation and is therefore untimely. It is the Employer's further position that this complaint must also be dismissed as the Board has no jurisdiction to entertain a complaint that is not filed in accordance with the time limits set out in the Regulation.

18In order to deal with the timeliness issue, the matter requiring the complainant’s attention is addressing whether he agrees or disagrees with any of the four facts asserted by the Employer in each of paragraphs 14 and 16 above. I am not persuaded, based on the material before me, that the complainant is medically unable to respond to that limited inquiry.

19Therefore, I hereby direct as follows:

1. As regards Board File #P2013-3576, the complainant is hereby directed to advise the Board by no later than November 30, 2018 whether he agrees or disagrees with any of the four factual assertions made by the Employer and set out in paragraph 14 above. If the complainant disagrees with any of the facts as asserted, he is to indicate his understanding of the fact and the basis of his belief.

2. As regards Board File #P2014-0652, the complainant is hereby directed to advise the Board by no later than November 30, 2018 whether he agrees or disagrees with any of the four factual assertions made by the Employer and set out in paragraph 16 above. If the complainant disagrees with any of the facts as asserted, he is to indicate his understanding of the fact and the basis of his belief.

20If the complainant takes the position that he is medically unable to respond to this specific and limited direction, he is to provide by no later than November 30, 2018, reliable and sufficient medical documentation prepared by a treating medical practitioner. Any such medical documentation must confirm that the treating practitioner has been provided with and has reviewed a copy of this interim decision. Any medical documentation is to specifically comment on the evidence set out herein from which it appears that the complainant is medically able to respond and participate in a more limited fashion (other than an oral hearing) with respect to the progress of his complaints. Further, any medical documentation must set out the basis for any opinion that the complainant is medically unable to respond to the specific factual inquiry outlined herein. A medical note of the type that has been provided to date is unlikely to be sufficient in addressing this Board’s concerns and inquiry in this regard.

21Should the complainant fail to respond to the Board’s direction in paragraph 19 above, or, having failed to respond to the direction in paragraph 19, should he also fail to provide the more sufficient and reliable medical evidence as indicated in paragraph 20 above, the Board will deal with Board Files #2013-3576 and #2014-0652 on the basis of the material before it. The Board will otherwise deal with these matters upon receipt of, and subject to the complainant’s response.

Dated at Toronto, Ontario this 30th day of October, 2018.

Appendix A

Public Service of Ontario Act, 2006

ONTARIO REGULATION 378/07

public service grievance board: Complaints and hearings

Consolidation Period: From April 30, 2018 to the e-Laws currency date.

Last amendment: 182/18.

Legislative History: 19/16, 182/18.

This is the English version of a bilingual regulation.

CONTENTS

Interpretation

Definitions

Complaints Authorized by This Regulation

Complaint about dismissal for cause

Complaint about a disciplinary measure

Complaint about a working condition or a term of employment

Eligibility to File a Complaint

Eligibility generally

Restrictions, complaint about dismissal for cause

Restrictions, complaint about a working condition or a term of employment

Filing a Complaint

Notice of proposal to file a complaint

Period for dispute resolution

Filing a complaint

Hearing a Complaint

Duty to hear a complaint

Hearing

Combined hearings, etc.

Restriction on interim orders

“Vulnerable Person” under Section 24 of the Act

Vulnerable person

Interpretation

Definitions

1. In this Regulation,

“complainant” means a person who files a complaint with the Public Service Grievance Board or who gives notice in accordance with section 8 of his or her proposal to file a complaint;

“complaint about a disciplinary measure” means a complaint described in subsection 3 (1);

“complaint about a working condition or a term of employment” means a complaint described in subsection 4 (1);

“complaint about dismissal for cause” means a complaint described in subsection 2 (1);

“complaint under Part V of the Act (Political Activity)” means a complaint that may be filed with the Public Service Grievance Board under subsection 104 (3) of the Act;

“complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing)” means a complaint that may be filed with the Public Service Grievance Board under subsection 140 (3) of the Act. O. Reg. 378/07, s. 1.

Complaints Authorized by This Regulation

Complaint about dismissal for cause

2. (1) A person who is aggrieved by his or her dismissal for cause under section 34 of the Act may file a complaint about the dismissal for cause with the Public Service Grievance Board,

(a) if the person is eligible under sections 5 and 6 to file such a complaint;

(b) if the person gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) if the person complies with the filing requirements set out in section 10. O. Reg. 378/07, s. 2 (1).

(2) Subsection (1) does not affect the right of a person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 2 (2).

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,

(a) if the public servant is eligible under section 5 to file such a complaint;

(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. 3 (1).

(2) Subsection (1) does not affect the right of a public servant to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 3 (2).

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,

(a) if the public servant is eligible under sections 5 and 7 to file such a complaint;

(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).

(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

1. The term or duration of the public servant’s appointment to employment by the Crown.

2. The assignment of the public servant to a particular class of position.

3. A dismissal without cause under subsection 38 (1) of the Act or a matter relating to such a dismissal.

4. The evaluation of a public servant’s performance or the method of evaluating his or her performance.

5. The compensation provided or denied to a public servant as a result of the evaluation of his or her performance. O. Reg. 378/07, s. 4 (2).

(3) Subsections (1) and (2) do not affect the right of a public servant to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 4 (3).

Eligibility to File a Complaint

Eligibility generally

5. (1) Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32 (1) or (2) of the Act to employment by the Crown. O. Reg. 378/07, s. 5 (1).

(2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint:

1. He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006.

2. He or she was represented by the Ontario Crown Attorneys’ Association or the Association of Law Officers of the Crown under an agreement between the Crown and one or both of those Associations.

3. He or she was employed in a position that was classified under subsection 33 (1) of the Act as a term classified position.

4. He or she was employed for a fixed term,

i. on a non-recurring project,

ii. in a professional or other special capacity, or

iii. on a temporary work assignment arranged by the Public Service Commission in accordance with a program for providing temporary help.

5. He or she was employed for a fixed term for fewer than 14 hours per week, employed for a fixed term for fewer than nine full days in four consecutive weeks or employed for a fixed term on an irregular or on-call basis.

6. He or she was employed for a fixed term during his or her regular school, college or university vacation period or was employed for a fixed term under a co-operative educational training program. O. Reg. 378/07, s. 5 (2).

(3) Subsections (1) and (2) do not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 5 (3).

Restrictions, complaint about dismissal for cause

6. A person is eligible to file a complaint about dismissal for cause only if, immediately before his or her dismissal,

(a) he or she had been employed continuously for at least 12 months for a fixed term or a succession of fixed terms under subsection 32 (1) or (2) of the Act; or

(b) he or she was employed otherwise than for a fixed term and was not on probation. O. Reg. 378/07, s. 6.

Restrictions, complaint about a working condition or a term of employment

7. (1) A public servant is eligible to file a complaint about a working condition or a term of employment only if he or she had been employed continuously for at least six months before the deadline for giving notice in accordance with section 8 of his or her proposal to file the complaint. O. Reg. 378/07, s. 7 (1).

(2) Despite subsection (1), the following public servants are not eligible to file a complaint about a working condition or a term of employment:

1. A public servant employed in a position that is classified under subsection 33 (1) of the Act as a position within the Senior Management Group.

2. A public servant who is employed as a Branch Director or as a Hospital Administrator.

3. A public servant who is employed in a position with headquarters located outside Ontario.

4. A public servant who is employed by the Crown as a lawyer. O. Reg. 378/07, s. 7 (2).

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.

10. A complainant who, at the material time, worked in a Commission public body shall give the notice to the chair of the Public Service Commission. O. Reg. 378/07, s. 8 (1).

(2) Subsection (1) does not apply with respect to a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 8 (2).

(3) The notice must set out the reasons for the complaint. O. Reg. 378/07, s. 8 (3).

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

1. For a complaint about dismissal for cause, within 14 days after the complainant receives notice of the dismissal.

2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.

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).

(2) Subsection (1) does not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 9 (2).

(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).

(4) If the complainant was required to give the chair of the Public Service Commission notice of the proposal to make the complaint, and if the chair or his or her delegate meets with the complainant within 30 days after the chair 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 chair gives written notice to the complainant of his or her decision about the proposed complaint. O. Reg. 378/07, s. 9 (4).

(5) If the deputy minister or chair of the Public Service Commission, as the case may be, or his or her delegate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires 30 days after the notice was given to the deputy minister or chair. O. Reg. 378/07, s. 9 (5).

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).

Hearing a Complaint

Duty to hear a complaint

11. (1) Within 30 days after a complaint is filed with the Public Service Grievance Board, the chair of the Board shall fix a time and place for a hearing of the complaint. O. Reg. 378/07, s. 11 (1).

(2) The complainant and such other persons as the Board considers appropriate are parties to the complaint. O. Reg. 378/07, s. 11 (2).

(3) The chair of the Board shall give written notice of the hearing to the parties. O. Reg. 378/07, s. 11 (3).

Hearing

12. (1) The Public Service Grievance Board may assign one or more of its members to hear a complaint. O. Reg. 378/07, s. 12 (1).

(2) A member is not precluded from hearing a complaint because he or she assisted the parties to mediate, conciliate, negotiate or help resolve the complaint by means of an alternate dispute resolution mechanism or because he or she presided at a pre-hearing conference at which the parties attempted to settle issues in the complaint. O. Reg. 378/07, s. 12 (2).

(3) The consent of the parties is not required to permit a member described in subsection (2) to hear a complaint. O. Reg. 378/07, s. 12 (3).

Combined hearings, etc.

13. (1) If two or more complaints involve the same or similar questions of fact, law or policy, the Public Service Grievance Board may combine the hearings for all or part of the complaints or may hear the complaints at the same time. O. Reg. 378/07, s. 13 (1).

(2) The consent of the parties is not required to permit the Board to combine hearings or hear complaints at the same time. O. Reg. 378/07, s. 13 (2).

Restriction on interim orders

14. The Board cannot make an interim order requiring the reinstatement of a person as a public servant. O. Reg. 378/07, s. 14.

“Vulnerable Person” under Section 24 of the Act

Vulnerable person

15. For the purposes of section 24 of the Act, a person is a vulnerable person,

(a) if he or she is a person to whom services are provided in a community resource centre that is designated under section 15 of the Ministry of Correctional Services Act; or

(b) if he or she is an inmate, youth, patient, pupil or resident who is detained, resides or is cared for in,

(i) premises where services are provided by the Minister under the Child, Youth and Family Services Act, 2017,

(ii) Revoked: O. Reg. 19/16, s. 1.

(iii) The Ontario School for the Deaf, The Ontario School for the Blind or a school for the deaf, school for the blind or demonstration school established or continued under section 13 of the Education Act,

(iv) a psychiatric facility under the Mental Health Act,

(v) a correctional institution under the Ministry of Correctional Services Act,

(vi) a place of temporary detention under the Youth Criminal Justice Act (Canada),

(vii) a youth custody facility under the Youth Criminal Justice Act (Canada), or

(viii) any other workplace where a public servant assigned to any of the locations described in clause (a) or subclauses (i) to (vii) works in carrying out the duties of his or her position. O. Reg. 378/07, s. 15; O. Reg. 19/16, s. 1; O. Reg. 182/18, s. 1.

16. Omitted (provides for coming into force of provisions of this Regulation). O. Reg. 378/07, s. 16.