PSGB# P-2017-3833

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Stricko

Complainant

• and -

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

Employer

BEFORE

Brendan Morgan

Vice-Chair

FOR THE COMPLAINANT

Daniel Stricko

FOR THE EMPLOYER

Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 1, 2018

DECISION

A. BACKGROUND

1The Complainant, Mr. Daniel Striko, is employed by the Ministry of Community Safety and Correctional Services (“CSCS” or the “employer’). At all relevant times he has worked at the Employer’s Elgin-Middlesex Detention Centre facility and was classified as a ‘Captain’.

2On March 20, 2018, the Complainant filed a ‘Form 1 – Application’ contesting a 5 day (40 hour) disciplinary suspension imposed upon him by the Employer. The Complainant set out three particular reasons in his Form 1 Application as to why the discipline was, in his opinion, unwarranted and unjust.

3The incident that resulted in the Complainant’s suspension was said to have occurred on October 25, 2017.

4During the course of filing its ‘Form 2 Response’ Counsel for the Employer advised the Complainant and the Board that the Employer would be challenging the Board’s ability to hear the complaint. Specifically, the Employer submitted that the complaint was untimely pursuant to the provisions set out in Regulation 378/07 (the “Regulation”) of the “Public Service of Ontario Act, 2016” (the “Act”).

5The Employer further submitted that the discipline imposed upon the Complainant was justified as was the five day suspension.

6A mediation session was scheduled for July18, 2018. However, a dispute arose as to where the mediation should be conducted. The Complainant, citing health and other reasons, sought to have the matter held in London, Ontario. The Employer submitted that the mediation should be held at the Board’s office in Toronto or, in the alternative, via teleconference call.

7Following the Board’s initial decision to have the mediation held in London Counsel for the Employer sought to make further submissions on the issue. A teleconference hearing was conducted on July 6, 2018, to allow both parties to make oral submissions as to the location of the mediation. During the course of the teleconference hearing both Counsel for the Employer and the Complainant agreed that a teleconference mediation session was acceptable.

8As a result on July 21, 2018, the Board issued an addendum to its original decision directing that the mediation would be conducted by teleconference call. The Board subsequently scheduled the mediation to be held on August 1, 2018.

9Prior to the August 1, 2018, mediation the Employer advised the Board and the Complainant that it did not wish to mediate the dispute. As mediation in the Board’s process is voluntary the only matter left for the Board to consider on August 1, 2018, was the Employer’s preliminary objection with respect to the timeliness of the Complainant’s complaint.

B. Employer’s Timeliness Objection

10The 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 related to discipline as described in Regulation 378/07 of the Act.

11It is worth noting that the facts surrounding the Employer’s timeliness objection are largely not in dispute. The Complainant, rather, provided a number of reasons as to why his complaint unfolded in the manner in which it did and why the notice of complaint was filed on February 10, 2018.

12The incident that resulted in the imposition of the suspension was said to have occurred on October 25, 2017 at the Elgin-Middlesex Detention Centre. An ‘allegation meeting’ was held between the parties on January 11, 2018. The Complainant was subsequently suspended on January 24, 2018 for a period of five days or 40 hours.

13It was further agreed by the parties that the Complainant served the suspension from January 25 until January 31, 2018. It stands to reason that during that period of time the Complainant had no access to the facility including certain personal possessions in his locker.

14The Complainant returned to work on February 1, 2018.

15On February 10, 2018, the Complainant provided a written correspondence to the Deputy Minister of CSCS advising the Deputy Minister of the Complainant’s intention to “file a grievance under the Public Service Act” contesting the five day suspension. A copy of this correspondence was included in the Complainant’s Form 1-Application. The Complainant acknowledged that this was filed with the Deputy Minister on February 10, 2018.

16The Complainant filed a Form 1-Application with the Board on or about March 20, 2018. The Employer’s Form 2 Response outlining the timeliness objection was filed with the Board on June 19, 2018.

17Counsel for the Employer submitted that the agreed-upon chronology of the Complainant’s complaint demonstrated a ‘prima facie’ violation for the filing of a complaint as set out in the Regulation 378/07. As a result, Counsel argued, the Board lacked the jurisdiction to review the merits of the case.

18Specifically, the Employer directed the Board’s attention to Section 8(4)(2) of the Regulation which states that where discipline is imposed a Complainant is required to adhere to the following:

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

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

19The Employer submitted that the Complainant received notice of the imposition of discipline on January 24, 2018. This was in the form of a correspondence addressed to the Complainant from Mr. Jeremie Brooks, Deputy Superintendant, Operations at CSCS. The correspondence noted that it was “Hand Delivered” to the Complainant.

20While the Complainant took the position that he did not agree with the objectivity of the individuals conducting the investigation that led to his being disciplined he did not dispute the fact that he received the notice of the imposition of discipline on January 24, 2018.

21Having received the notice of discipline on January 24, 2018, Counsel for the Employer submitted that the “14 day clock” described in Section 8(4)(2) had begun to “count down”. Counsel submitted that the Complainant therefore had until February 7, 2018, to file a complaint.

22Instead, the complaint was filed on February the 10th, 2018. This, Counsel submitted, was three days outside of the time frame provided for by the Regulation. As a result, the Board was without jurisdiction to hear the complaint and it must therefore be dismissed.

23Counsel for the Employer provided the Board with four Board authorities in support of the position that the complaint should be dismissed on the basis that it did not comply with the filing requirements set out in Regulation 378/07, Section 8(4)(2). These authorities are discussed at greater length later in this Decision.

24While the Complainant in his oral presentation did not dispute the accuracy of the chronology of this matter as described by Counsel for the Employer and as acknowledged by the Complainant’s written materials he did provide submissions as to why he was unable to adhere to the timelines for filing.

25Firstly, the Complainant stated that he was placed at a disadvantage by being suspended and thus being barred from the workplace for a period of five days. This prohibition from the workplace made it impossible for him to access certain documents that were in his personal locker. It was the Complainant’s submission that these unspecified documents were necessary for him to initiate a complaint. Without these documents and access to certain individuals who are familiar with the Regulation and its processes he had effectively lost five days to file his notice of complaint.

26Secondly, upon returning to work after the suspension the Complainant found himself with very little opportunity to file the notice of complaint. The Complainant submitted that he was required to constantly work upwards of twelve and a half-hour shifts and thus had no realistic opportunity to research what was necessary for filing and then to complete the actual task of filing the notice of complaint. This was further compromised, again, by his inability to contact certain individuals who are known locally to have a certain ‘expertise’ in matters involving the Regulation on and its processes.

27Finally, the Complainant cited his on-going health problems as an over-arching reason for how this matter evolved. The Complainant directed the Board’s attention to a letter that had been previously provided to the Board from the Complainant’s health care practitioner, dated June 14, 2018. This particular correspondence was provided to the Board in support of the Complainant’s request to have the mediation session moved to London.

28The Complainant suggested that he felt “muddied” during this period. While he did not elaborate further on his situation he did ask the Board to review the contents of the letter from the Complainants health care practitioner. This would suggest that at the time of his suspension he was suffering from the same conditions as those described in the June 14, 2018 correspondence.

29To summarize, the Complainant did not provide any evidence to refute that which was provided by the Employer. The chronology of events as supported by the January 24 and February 10, 2018 documents was not challenged by the Complainant. When asked during the course of the hearing the Complainant did not question the accuracy of these documents or the dates upon which they had been filed.

30The Complainant’s argument rested on the three factors described above in paragraphs 25 through 28, above. These address reasons why the Complainant may have had difficulties in meeting certain requisite time-lines as set out in the Regulation. However, they do not provide a rebuttal to the Employer’s legal interpretation and application of the Regulation.

C. Decision – Timeliness

31For the reasons that follow I must determine that the complaint initiated by the Complainant was not filed by the Board in a timely matter. As a result the complaint must be dismissed.

32As has been noted in a number of previous decisions of the Board all complaints that come before the Board are subject to specific requirements set out in the Act and its regulations. Complaints relating to discipline are subject to the following provisions under Reg. 378/07:

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 a complaint; and..

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

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

33The Board’s decision in St. Amant v The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Carter), P-2012-0601, 2013 CanLII 4673 (ON PSGB), described the limits of the Board’s jurisdiction where a Complainant failed to comply with the mandatory time limits as established by the Regulation.

34At paragraph 10 of the decision 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.”

35In Strong and the Crown in Right of Ontario (Ministry of Community Youth Services) (Devins), P-2015-0638, 2016 CanLII 89880 (ON PSGB), the Board declined jurisdiction over a complaint that had been filed some fifty–six days after the initial discipline was imposed upon the Complainant. The Complainant in Strong waited until he had returned from his rather lengthy suspension to initiate the complaint.

36In dismissing the complaint on the Employer’s timeliness objection the Board commented at paragraph 10 that:

“While I appreciate that it was easier for the Complainant to advise the Deputy Minister of his intention to complain about his suspension once he returned to work, the Regulation is very specific about when the time limits start: the notice must be given “within 14 days after the complaint receives notice of the imposition of the disciplinary measures.” There is no ambiguity in this provision and I have no discretion to allow for a later filing date.”

37Similar to the Complainant in Strong, the present Complainant is effectively asking the Board to relieve against the mandatory time lines for filing a complaint as described in the Regulation based on certain personal circumstances. The Complainant cited a number of issues ranging from an inability to access paperwork and assistance due to his suspension from the workplace, to a heavy shift schedule to health concerns as reasons for not filing within the 14 day period set out in Regulation 378/07, Section 8(4)(2).

38Unfortunately for the Complainant the Board has no discretion to provide for such relief in the circumstances that were raised during the course of the hearing. The Regulation does not provide for any relief against a Complainant’s failure to file within the requisite time lines as set out in the Regulation.

39The same rationale was applied in two other authorities cited by Counsel for the Employer; Taylor and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Devins), P-2016-2281, 2017 CanLII 65620 (ON PSGB), and Noel and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Morgan), P-2017-174, 2018 CanLII 14213 (ON PSGB).

40In both decisions the Board declined jurisdiction over the respective complaints involving discipline complaints that were filed outside of the mandatory time limits. The Board reiterated the well-entrenched position that the time limits were mandatory and the Board lacked the discretion to relieve against a Complainant’s failure to comply with that which is set out in the Regulation.

41The written and oral submission of both parties clearly establish that the notice filed by the Complainant on February 10, 2018, exceeded the 14 day period set out in Section 8(4)(2) of the Regulation. I have no discretion to relieve against the Complainant’s failure to comply with the time limits.

42The Complainant relied upon a number of factors to seek relief against his failure to abide by the Section 8(4)(2) time requirements. Such factors as an inability to access paperwork, advice or a difficult work schedule are not matters that the Board has discretion to consider against a violation of the time limits.

43Given the Complainant’s failure to abide by the provisions set out in Section 8(4)(2) 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 the Complainant’s complaint regarding his five day suspension.

44As a result the Employer’s preliminary objection is upheld and the complaint is dismissed.