PSGB# P-2017-1750

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Morris

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

Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel

REPRESENTATIONS

August 9, 2018

DECISION

1This complaint challenges the Employer’s decision in issuing a 15-day suspension to the complainant in connection with the complainant’s alleged conduct in providing a reference check for a former Ministry employee. By notice dated October 24, 2017, the matter was set down for mediation on September 6, 2018.

2On August 9, 2018, the Employer filed its Form 2 response, taking the position that the Board had no jurisdiction to entertain the complaint on the basis that the complaint was untimely. The Employer asked that the Board deal with the preliminary objection prior to September 6, 2018.

3On August 20, 2018 the parties were advised that the preliminary issue could not be determined prior to September 6, 2018 given the time required to obtain the complainant’s factual position and submissions and provide any opportunity for reply. The Board therefore advised the parties that the issue of the Board’s jurisdiction to entertain the complaint would be heard on September 6, 2018 and directed the parties to be prepared to call their evidence and make their submissions with respect to that issue.

4By email late on September 5, 2018 the complainant advised the Board that he would be unable to attend the hearing the following day. The basis for the complainant’s request to adjourn was that he mistakenly believed the hearing to be scheduled for Friday (September 7); that he was out of town, and therefore unable to attend. The Employer agreed to an adjournment but asked that the preliminary objection be dealt with in writing rather than scheduling another day.

5That history was set out in an interim decision dated September 6, 2018. The decision notes that the reason for the adjournment fell far short of the kind of compelling circumstance that would warrant the Board granting an adjournment. However, having regard to the Employer’s position, the adjournment was granted. The complainant was directed to respond in writing to the Employer’s position on the timeliness issue by no later than September 28, 2018, setting out the facts with which he agreed, those he disputed, and those on which he intended to rely in support of his position. He was also directed to set out his submissions with respect to the issue of whether his complaint was timely and whether the Board therefore had jurisdiction to entertain the complaint.

6That interim decision was sent to both the complainant and his representative. The Board has received no response from either the complainant or his representative pursuant to that Board direction, leaving the Board to conclude that the complainant is content to have the timeliness issue determined based on the material before the Board. That material includes the complainant’s Form 1 and the response and submissions from the Employer in its Form 2. In the result, the Board will determine the matter based on the material before it.

7The letter of suspension is dated August 15, 2017. In his Form 1, the complainant asserts that he received this letter on September 5, 2017. On September 7, 2017 the complainant forwarded a letter to the Deputy Minister providing notice of his proposal to file a complaint with the Board regarding the disciplinary measure imposed.

8Relevant portions of section 8 of Ontario Regulation 378/07 made under the Public Service of Ontario Act, 2006 (the “Regulation”) provide as follows:

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:

1. 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:

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

9Pursuant to the terms of the Regulation, the complainant was required to forward his notice of proposal to file a complaint to the Deputy Minister within 14 days after receipt of notice of his suspension, the disciplinary measure at issue. The notice of proposal to file the complaint was provided to the Deputy Minister on September 7, 2017. Assuming that the complainant did not receive notice of the suspension until September 5, 2017 as asserted, notice of proposal to file the complaint was given 2 days later and was timely in that regard.

10The Employer asserted that notice of the suspension was given on August 15, 2017. If so, the notice of proposal to file the complaint, filed on September 7, 2017 would be outside the time limits under section 8(4) of the Regulation, rendering the Board without jurisdiction to entertain the complaint. The Board has previously held that the requirements of the Regulation are mandatory and that the Board has no jurisdiction to relieve against those time frames. Compliance with the mandatory time limit for filing a notice of proposal to file a complaint is a pre-condition to the Board taking jurisdiction over a complaint. See the decisions in St. Amant and Ontario (MCSCS), 2013 CanLII 4673 (ON PSGB) and Plouffe and Ontario (MCSCS), 2017 CanLII 25421 (ON PSGB).

11There is a factual dispute as to when the complainant received notice of the suspension. However, in the circumstances, that factual issue need not be determined, as the employer also raised a second objection to the timeliness of the complaint. It asserts that the complainant filed his complaint to the Board prior to the expiry of the dispute resolution period mandated by the Regulation, rendering it untimely in that regard.

12In its submissions the Employer asserted that no meeting was held with the Deputy Minister or his delegate following delivery of the notice of proposal to file a complaint. Section 9 of the Regulation provides:

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.

(5) If the deputy minister…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…

13Notice of proposal to file a complaint was given on September 7, 2017. The Employer indicates that no meeting was held. There is nothing before me that takes issue with that factual assertion. The complaint was filed with the Board on October 5, 2017. The dispute resolution period did not expire until 30 days after receipt of the notice of proposal, that is, 30 days after September 7, 2017, being October 7, 2017. The complaint was therefore filed two days early.

14The Board has previously determined that a complainant’s failure to meet this time limit disentitles a complainant from filing their complaint and leaves the Board without jurisdiction to entertain such a complaint. In Bourgeault v. Ontario (MCSCS), 2013 CanLII 84292 (ON PSGB), the Board found:

16… The issue is about the timing of filing with the Board. …of more significance for this case, section 9(1) of the Regulations provides that a complainant is not entitled to file a complaint with this Board until expiry of the period provided for dispute resolution. This means that a complainant must wait to file with the Board until the employer has had a chance to consider the complaint.

17… In this case, section 9(5) sets out the rules for when the period for dispute resolution ends. There was no meeting with the Deputy Minister’s representative within thirty days of when the notice was given to the deputy minister - May 11 for both Ms. Bourgeault and Mr. Schmohl - so the dispute resolution period ended 30 days after May 11, the date of the notice. By my count, that puts the earliest date the complainants were eligible to file with this Board at June 10, and the latest date 14 days later, or June 24, 2012.

19Even if one were to accept that the Form 1’s were filed with the Board in May (which is ultimately not the case, as they were not received, as will be explained below), they would have been too early, as they would have been filed before the close of the dispute resolution period, which ended on June 10.

[29] The question is whether [the complaints] were filed with this Board in a manner and at a time which gives the Board the power to deal with them. For the reasons set out above, I find that they were not, so that the Board is without the power to entertain them.

15Similarly, in Doyle v. Ontario (MMA), 2017 CanLII 52705 (ON PSGB), the Board held:

[21] Once a notice of proposal is made to the Deputy Minister, the Regulation provides a dispute resolution period before the complainant is entitled to file a complaint with the Board for mediation and/or arbitration. A complaint will be untimely in the sense of being too early if it is filed before that dispute resolution period has expired, and too late if it is filed more than fourteen days after the dispute resolution has expired. The end of the dispute resolution period is measured in different ways, depending on whether there is a meeting with the deputy minister (or delegate) within 30 days after receipt of the complainant’s notice of proposal to file a complaint. If there is no meeting within those 30 days, the dispute resolution period expires 30 days after the notice of proposal is given to the Deputy Minister [section 9(5) of Regulation 378/07].

16In this case, and even assuming that the complainant did not receive notice of the suspension until September 5, 2017, the complaint was filed with the Board two days in advance of when it first could properly be filed. The complainant was not eligible to file his complaint when he did, rendering the complaint untimely. That leaves the Board without jurisdiction to consider the complaint. In fact, an earlier complaint brought by this complainant was dismissed by decision dated June 15, 2018. That complaint was also filed prior to the expiration of the dispute resolution period in circumstances where a meeting had been held with the Deputy Minister’s delegate (See Morris v. Ontario (MCSCS), 2018 CanLII 64318 (ON PSGB).

17That earlier decision also notes that, as it is a process requiring the agreement of the parties, a complainant cannot assume that mediation will occur, such as in circumstances where the Employer raises preliminary objections going to the Board’s jurisdiction to entertain a complaint.

18Based on the material before me, I find that this complaint was filed with the Board prior to the expiration of the dispute resolution period provided for in Section 9 of the Regulation. The complaint is therefore untimely and the Board has no jurisdiction to entertain the complaint. This complaint is hereby dismissed.