PSGB# P-2017-1749

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Noel

Complainant

• and -

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

Employer

BEFORE

Brendan Morgan

Vice-Chair

FOR THE COMPLAINANT

Clintkirth Noel

FOR THE EMPLOYER

Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 11, 2017

D E C I S I O N

A. Background

1The Complainant, Mr. Noel Clintkirth, is employed by the Ministry of Community Safety and Correctional Services (“CSCS” or the “employer”). At all relevant times he has worked at the Toronto South Detention Centre (“TSDC”).

2On July 21, 2017, the Complainant filed a complaint contesting a two day suspension imposed upon him by the Employer. In the course of the filing of their response the Employer raised a preliminary objection that the complaint is untimely pursuant to the timeliness provisions described in Regulation 378/07 (the “Regulation”) of the Public Service of Ontario Act, 2016 (“the Act”).

3A hearing was scheduled for December 11, 2017, to determine the validity of the Employer’s timeliness objection.

4The facts surrounding this complaint are, for the most part, not in dispute. The Complainant has been employed by the Employer for sixteen years. Until the suspension of which he complains he was free of any discipline during his lengthy period of service.

5On May 26, 2017, the Complainant attended an allegation meeting with his Employer where it was alleged that he had engaged in conduct that was unprofessional and in violation of certain anti-harassment workplace policies.

6On June 30, 2017, a two day suspension was imposed upon the Complainant by the Employer. A written notice of a disciplinary suspension was provided to the Complainant. According to this written correspondence the Employer was satisfied that the Complainant had engaged in certain conduct that warranted the two day disciplinary penalty.

7Further, the notice of the written suspension advised the Complainant that he was to serve the two day suspension on July 15 and 16, 2017. During the course of the hearing the Complainant advised the Board that he could not remember serving the suspension. However, for reasons discussed below, I find that nothing of consequence turns on this issue with respect to the disposition of the employer’s preliminary objection.

8On July 21, 2017, the Complainant advised the Deputy Minister in writing as to his intention to file a formal complaint pursuant to Regulation 378/07 of the “Act”. It should be noted that within this correspondence the Complainant specified that the allegation meeting with his employer had taken place on May 26, 2017 and that he had received the letter of discipline on June 30, 2017.

9A resolution meeting took place between the parties on August 18, 2017. On September 18, 2017, the Complainant was advised in writing by the Employer that his complaint was denied.

10On October 2, 2017, the Board received the Form 1 application from the Complainant and a hearing was scheduled accordingly.

B. Employer’s Timeliness Objection

11The Employer submits that the complaint should be dismissed on the grounds that the Complainant’s application failed to adhere to the mandatory timelines for the filing of a complaint as described in Regulation 378/07 of the Act.

12Specifically, the Employer relied upon Section 8(4) (2) of the Regulation which states that where discipline is imposed a Complainant is required to adhere to the following:

“2. For a complaint about a disciplinary measure, within 14 days

after the complainant receives notice of the imposition of the disciplinary measure.”

13In their submissions the Employer relied on the undisputed fact that the Complainant received his notice of the imposition of discipline on June 30, 2017. His formal notice of complaint with respect to the imposition of this discipline was subsequently filed on July 21, 2017. By filing on July 21, 2017, the Employer argued, the Complainant exceeded the 14 day mandatory time limit as required by the Regulation by 7 days.

14The Employer advanced the position that the time limits described in Section 8 (4) (2) are mandatory and that the Board is without jurisdiction to modify or otherwise extend the timeline. As a result, the Employer argued, the Complainant’s application should be dismissed.

15The Complainant in both his written and oral submissions acknowledged that he had received the written notice of a disciplinary suspension of June 30, 2017. He further agreed that the notice of complaint was filed on July 21, 2017 which was some 21 days after he received the notice of the two day suspension. He suggested that his failure to file his complaint for 21 days resulted from what he believed was the ongoing investigation into his conduct.

16Specifically, the Complainant claimed that he had not been provided with the opportunity to review a video tape that was said to have captured the events in dispute. He claimed that despite certain commitments made by his Employer he was not able to access the tape until July 21, 2017. This is, of course, the same day upon which he filed his formal notice of complaint.

17The Complainant suggested that with respect to the review of the video tape he was relying on representations from Deputy Katherine Curkan. The Complainant suggested that he was advised that he would be given the opportunity to review the video tape before the issue of his discipline was concluded. However, no evidence was provided by the Complainant that would support an argument that the Employer had somehow agreed to waive the time limits set out in Section 8 (4) (2) of the Regulation.

C. Decision – Timeliness

18For the reasons that follow I must determine that the complaint initiated by the Complainant was not filed with the Board in a timely manner. As a result the complaint must be dismissed.

19As has been noted in a number of previous decisions of the Board all complaints that come before it are subject to the Act and its regulations. Complaints relating to discipline are subject to the following provisions:

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..

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

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

20The decision of the Board in St. Amant v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2012-0601, described the absolute limits of the Board’s jurisdiction where a Complainant failed to comply with the mandatory time limits established by the Regulations.

21At paragraph 10 the Board commented 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 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.”

22In its decision in Plouffe v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2016-0604 the Board reinforced its position with respect to the mandatory time limits imposed by the Regulation when it stated that:

(14) The 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.

23Both the written and oral submissions of the Complainant and Employer clearly indicate that the notice filed by the Complainant exceeded the 14 day period prescribed by Section 8(4) (2) of Regulation 378/07. It is clear on the face of the agreed-upon correspondence entered as exhibits before me that the time limits have been not been met by the Complainant.

24The Complainant, unfortunately, relied to his detriment on his decision to view the video tape evidence before filing his formal complaint. During the course of the hearing he suggested that he believed the investigation into his conduct was still ongoing. This would appear to have delayed his filing of his formal complaint until July 21, 2017, by which time the mandatory time limit for the filing of the notice had elapsed.

25Given the Complainant’s failure to abide by the notice provisions set out in Section 8 (4) and the Board’s consistent practice with respect to the application of the Regulation I am left with no alternative but to decline jurisdiction to entertain his complaint regarding his disciplinary suspension.

26As a result the Employer’s preliminary objection is upheld and the complaint is dismissed.