PSGB# P-2018-0617

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Taylor

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brendan Morgan

Vice-Chair

FOR THE COMPLAINANT

Vicki Taylor

FOR THE EMPLOYER

Jonathan Rabinovitch / Sean White Treasury Board Secretariat Legal Services Branch Co-Counsel

HEARING

December 14, 2018 (by teleconference) Written Submissions received on January 15, 2019 and January 23, 2019

DECISION

A. Background and Context

1The Complainant, Ms. Vicki Taylor, is employed by the Ministry of Community Safety and Correctional Services (“CSCS” or the “Employer’). This decision deals with her allegation that the Employer has failed to accommodate the Complainant at the workplace.

2The Complainant has, at all relevant times been employed at the Employer’s Central East Correctional Centre (“CECC”) in Lindsay, Ontario.

3By way of background, the Complainant filed three “Form 1- Applications” with the Board during a three-month period commencing in February 2018. The subject matter of all three complaints is distinct from the others and references different periods in the employment history of the Complainant.

4On May 14, 2018, the Complainant filed her second ‘Form 1 – Application’ alleging that the Employer had failed to provide workplace accommodation. The Board assigned file number P-2017-0617 to this complaint. This complaint, which deals with the Employers alleged failure to accommodate the Complainant at the workplace from a period commencing in October 2016 until February 2018, forms the subject matter of this decision.

5It is worth noting that the first complaint filed by the Complainant challenged the alleged refusal of the Employer to assist with her claim for long-term disability compensation. The Complainant filed the complaint with the Board on February 5, 2018 and the Board assigned file number P-2017-3388 to this matter. On September 27, 2018, the Board issued a decision dismissing the complaint.

6The Complainant filed her third complaint with the Board on May 14, 2018. The complaint alleged that the Employer continued to deny her request for accommodation. The Board assigned file number P-2018-0618 to this file. This matter has been the subject of a teleconference hearing and the exchange of written submissions between the parties and the Board. A decision from the Board with respect to this complaint is pending.

7The Board scheduled a mediation session for May 22, 2018. Originally, the Board scheduled the mediation session to review the Complainant’s initial complaint, file number P-2017-3388. The second and third complaints were filed with the Board approximately one week before the May 22, 2018, mediation session was to be conducted.

8Given the timing of the filing of the second and third Form-1 Applications, the Employer was unable to provide their completed Form 2 Response prior to the May 22, 2018 mediation session. That said, Counsel for the Employer agreed to mediate all three complaints on May 22, 2018.

9Unfortunately, the parties were unable to resolve any of the outstanding issues in dispute at the May 22, 2018 mediation session.

10On July 25, 2018, the Board issued a decision addressing all three complaints.

11With respect to Board file P-2018-0617, the Board at paragraph 19 directed the Employer to file its response to the allegations raised by the Complainant in her Form 1 Application along with any preliminary objections it might submit were relevant. The Board directed the parties to provide the same with the respect to file number P-2018-0618.

12In accordance with the direction of the Board, Counsel for the Employer filed its’ ‘Form-2 Response’ with the Board on August 17, 2018.

13The Employer responded to both the substance of the complaint filed by the Complainant and submitted additional submissions. These submissions raised two preliminary objections challenging the Board’s jurisdiction to entertain the complaint that is the subject matter of this decision. Both preliminary objections suggested that the complaint had been filed in an untimely manner with the Board contrary to Regulation 378/07 (the “Regulation”) of the Ontario Public Service Ontario Act, 2016, (the “Act”).

14The Board scheduled a teleconference hearing on December 14, 2018 to address the submissions of the parties with respect to the complaints filed in May 2018, including Board File Number P-2019-0617.

15During the course of the teleconference proceedings, the Complainant indicated that she was unable to address the two preliminary issues raised by the Employer with respect to the timeliness of the complaint. As a result, the Board directed the Complainant to provide written submissions with respect to the preliminary issues.

16The following represents the totality of the submissions that the Board received from the parties during the teleconference and, subsequently, the written submissions. The Board received the written submissions of the Complainant on January 15, 2019 and the Employer’s on January 23, 2019.

B. Evidence

17Mr. Brian Green assisted the Complainant throughout the December 14, 2018, teleconference hearing. Counsels Mr. Jonathan Rabinovitch and Mr. Sean White represented the Employer.

18Certain facts emerged during the teleconference hearing that are largely not in dispute. The parties significantly differed on the interpretation and application of certain Sections of the Regulation and how the Board should apply these sections to the facts attached to the dispute.

19The parties acknowledged that the Complainant absented herself from work from the workplace on September 12, 2016. The Complainant submitted that this was due to the Employer’s failure to accommodate her at the workplace in light of the “bullying”, “harassment”, and “a lack of managerial support” that she had been subjected to for a period preceding September 2016.

20The parties further acknowledged that the Complainant had provided the Employer with medical reports on two occasions that stated that the Complainant was unable to return to work until she could be guaranteed that she would not have to work with certain unidentified co-workers. These co-workers had allegedly been engaging in acts of “harassment” and “bullying” against the Complainant during an unspecified period. The Employer did not agree with the Complainant’s submission that the “bullying” or “harassment” had taken place.

21There was agreement between the parties as to the dates that the Physician’s documents were completed and when the Employer received them. There was further agreement as to the dates when the Complainant wrote to the Deputy Minister. Finally, the parties agreed when the Complainant filed the complaint before this Board and finally when it was “time stamped” by the Board indicating when it had been received. The significance of these agreed to dates is discussed later in this decision as are all of the relevant dates as described in the parties’ submissions.

22The parties further acknowledged that as of January 23, 2018, that being the date that the final written submissions in matter were received by the Board, the Complainant had still not returned to work at the CECC.

C. Parties’ Submissions

23The Employer relied upon the submissions and authorities that it filed with the Board in August 2018 with respect to the complaint filed by the Complainant in May of 2018. The Employer denied that it had failed to accommodate the Complainant. Counsel submitted that the Complainant had failed to provide adequate particulars as to how it had failed to provide the requisite accommodation. In the event the Complainant was able to provide a more fulsome complaint, Counsel for the Employer reserved the right to respond to any particulars that the Complainant might choose to rely upon.

24As mentioned in paragraph 13, above, the Employer raised two preliminary objections. Counsel submitted that the Board should dismiss the complaint on the basis that the Complainant filed the complaint outside of the time limits described in Section 8(4) of the Regulation 378/07.

25In support of both preliminary objections, Counsel relied exclusively upon the written materials received from the Complainant’s physician along with the timing of the Complainant’s letter to the Deputy-Minister and the dates upon which the complaint was filed by the Complainant and subsequently timed stamped with the Board.

26With respect to the first objection, Counsel submitted that the facts set out in the application suggested that the complaint was based on a violation of a “working condition or term of condition” of employment. If true, Regulation 378/07, Section 8(4)(3) required the Complainant to file her complaint with the Deputy Minister within 14 days of becoming aware of the alleged violation of the working condition or term of employment.

27Counsel submitted that the Complainant had submitted a medical note to the Employer on October 7, 2016 some twenty-five days after she last attended at work on September 12, 2016. The note stated that she would be absent from work for a period of two weeks.

28The Employer submitted it did not hear from the Complainant with respect to her employment status until April 19, 2017 despite contacting her on three separate occasions for an update. At that time, the Employer received a completed “Work-Related Limitation and Restrictions” form from the Complainant’s physician stating that the Complainant was unable to return to work as several of her co-workers had subjected her to “bullying” and “harassment”.

29The note went on to state, that the Complainant could only return to work when the particular individuals involved in the alleged bullying and harassment were “no longer allowed to work with her ever.”

30The Employer received a similar Work-Related Limitation and Restrictions document from the Complainant’s physician on January 23, 2018. Once again, the physician who authored the note stated that the Complainant could only return to work “once individuals are no longer allowed to work with her ever.”

31The Employer noted that the Complainant had filed this complaint with the Board on May 14, 2018. This, the Counsel submitted, was some nineteen (19) months after she had taken an absence from work and forwarded her first medical note to the Employer.

32In the alternative, Counsel submitted that the document submitted by the Complainant, dated April 17, 2017, represented the first instance that the Complainant had provided substantial medical documentation that indicated her need for accommodation.

33The Employer submitted that the medical documentation, specifically the reference to the alleged bullying and harassment at work represented an explicit recognition by the Complainant that a “working condition or term of employment” had allegedly been breached. This, in Counsel’s submission, would have required the Complainant to file a complaint within 14 days of the violation coming to her attention as required by Section 8(4) of the Regulation. The Complainant waited until May 14, 2018, approximately thirteen months after the April 2017 medical note “came to the Complainant’s attention” and as a result, the complaint should be dismissed as untimely.

34Counsel stated that the additional medical information, dated January 23, 2018, mirrored the information contained in the document received from the physician in April 2017. It failed to raise new issues or seek any alternative accommodation remedies for the Complainant.

35Based on the undisputed evidence before the Board, Counsel submitted that the Complainant was required to file a complaint within 14 days of becoming aware of the alleged violation of a working term or condition as required by Section 8(4)(3) of the Regulation. The Complainant filed her notice of proposal “grieving” the failure of the Employer to accommodate with the Deputy Minister on February 16, 2018, and her complaint with the Board at the earliest, on April 30, 2018. Counsel submitted that the period between the violation of the alleged Regulation coming to her attention and the filing of the complaint was one of almost fourteen months, which is well in excess of the 14-day period for filing that the Regulation requires. As a result, it was submitted that the Board must dismiss the complaint.

36With respect to the second preliminary objection, the Employer submitted that the Board should dismiss the complaint as it violated the mandatory timelines for filing described in Sections 9(1)(5) and 10(1) of the Regulation.

37Counsel submitted that the Complainant submitted her notice to the deputy minister on February 16, 2018. No meeting was held and as a result, the dispute resolution period set out in Section 9(1) (5) of the Regulation expired 30 days later on March 19, 2018.

38From the date of March 19, 2018, the Complainant was required to file the complaint with the Board by no later than April 3, 2018 in accordance with the requirements of Section 10(1) of the Regulation.

39The complaint filed by the Complainant was dated as completed on April 30^th, 2018 and date stamped by the Board as received on May 14, 2018.

40In the submission of the Employer no matter what date the Board chooses to determine that the Complainant filed the complaint, both are outside the 14-day period required by the Regulation for filing a complaint. As a result, the Board has no jurisdiction to hear the complaint.

41In the submission of the Employer, either preliminary objection is sufficient for the Board to dismiss the complaint as untimely in breach of the Regulation.

42The Complainant stated that the Employer had failed to accommodate her at the workplace. The Complainant relied on the document attached to her Form 1 Application dated February 16, 2018, where she had grieved the Employer’s failure to provide workplace accommodation.

43The Complainant did not provide any further particulars with respect to the alleged workplace “bullying” and “harassment”. Her submissions were absent any specific dates, times or individuals involved in the alleged harassment at the workplace.

44Despite having been given the opportunity the Complainant did not elaborate as to how the Employer had failed to accommodate her other than it, the Employer, had failed to remove a number of people from her workplace.

45In her written submissions, dated January 15, 2019, the Complainant did address the preliminary issues raised by the Employer.

46In the submission of the Complainant, she filed the complaint in a timely way as required by the Regulation. The Complainant advised the Board that the “Employer was made aware of the grievance within the timeline of 14 days.” In the submission of the Complainant, her physician’s January 23, 2018 report set out a timeframe for the Employer to make the necessary workplace arrangements that would accommodate the Complainant. The Complainant identified the deadline for accommodating her as being twenty-one days from the date of the January 23, 2018 Doctor’s report. When the Employer failed to meet that deadline, the Complainant forwarded her letter to the Deputy-Minister.

47The Complainant further stated that she was not obligated to pursue a complaint against her Employer about the alleged breach of a working condition since the Employer had failed to provide a positive resolution to her demand to be accommodated.

48The Complainant submitted that because of all of the above the complaint filed on February 16^th, 2019, was consistent with the time requirements set out in the Regulation.

49Finally, the Complainant submitted that the complaint that forms the subject matter of this decision was filed in a timely way because the Board had agreed to hear a previous complaint filed by her in February 2018. It should be noted that this complaint, Board File Number P-2017-3388, addressed an unrelated dispute between the same parties and was the subject of a decision by the Board on September 27, 2018.

50The Board received the following authorities for consideration: Stricko and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB-2017-3833 CanLlI 88984 (ON PSGB) and Morris and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB-2017-0813 CanLlI 64318 (ON PSGB).

D. Decision

51Having considered all the materials entered before the Board and having heard the submissions of the parties I find 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.

52The relevant Sections of the Regulation are as follows:

Section 8(4) (3) sets out mandatory timelines for the filing of a complaint. It states:

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, s. 8 (4)

Section 9(1) states:

Period for dispute resolution

9. (1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until the expiry of the period provided under this section for dispute resolution. O. Reg. 378/07, s. 9 (1).

(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).

Finally, Section 10(1) provides:

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).

53The timelines described in the Sections described above are mandatory. The Board, on multiple occasions, has dismissed complaints that fail to adhere to these timelines. In Morris v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services,), PSGB-P-2017-0813 Vice-Chair Nairn summarized the issue of the mandatory nature of the Regulation’s timelines at paragraph [11]:

“It has repeatedly been held by the Board that the time lines set out in the current Regulation are mandatory and, if not met, deprive the Board of jurisdiction to entertain a complaint. The Board has no discretion to relieve against the regulatory time limits. See the decisions in St. Amant v Ontario (Community Safety and Correctional Services), 2013 CanLii 4673 and Ois v. Ontario (Community Safety and Correctional Services), 2014 CanLii 76835.”

54Based on the submissions of the parties I must conclude that the Complainant identified the issue of the alleged “bullying” and “harassment” that she had been subjected to at the workplace by at least April 27, 2017 when her physician advised the Employer that she could not return to work until she was accommodated. The nature of the accommodation request was to ensure that those co-workers who had allegedly “bullied” and “harassed” the Complainant were not to work with her upon her return to work. The Doctor went on to add that the Employer was to provide a “safe and supportive work place”.

55The documents further establish that the Complainant did not file her notice with the Deputy Minister until February 16, 2018 some ten months after she became aware of the alleged violation of the working condition or term of employment.

56That period for filing a complaint under Section 8(4) (3) establishes that the mandatory period for filing a complaint is 14 days. The ten-month period that the Complainant took to file the complaint with the Board violates the time line requirements of the Regulation. As a result, the Board lacks the jurisdiction to further entertain the complaint.

57Secondly, the Complainant confirmed that she filed her notice with the Deputy Minister on February 16, 2018 and, further, that there was no dispute resolution meeting. As set out in Section 9(5), the period for the dispute resolution expired thirty days after the notice was received. Section 10(1) required the Complainant to file a complaint within fourteen days after the expiration of the thirty-day notice period.

58I agree with Counsel for the Employer that the thirty-day period expired on March 19, 2018 and that Section 10(1) of the Regulation required the Complainant to file the complaint with the Board by no later April 3, 2018. The complaint was received and time stamped by the Board on May 14, 2018. Based on the agreed upon documents before the Board, I determine that the filing of the complaint with the Board exceeds the mandatory time for filing by forty-one days.

59Once again, the filing of the complaint falls well outside of the mandatory timelines for filing and as a result, the Board has no jurisdiction to hear the dispute.

60For all of the above I find that the complaint is untimely and as a result, it must be and is therefore dismissed.