PSGB# P-2018-2214

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Croisier

Complainant

• and -

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

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE COMPLAINANT

Stephen Moreau Cavalluzzo Shilton McIntyre & Cornish LLP Counsel

FOR THE EMPLOYER

Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel

HEARING

By written submissions received on April 12, April 29 and May 7, 2019

DECISION

1The Complainant, Chris Croisier, is employed as an Operational Manager/Staff Sergeant with the Ministry of Community Safety and Correctional Services (the “Ministry”) and currently assigned to the Toronto South Detention Center (“TSDC”).

2By a letter dated July 26, 2018 Mr. Croisier was advised by the Deputy Superintendent, Administration at TSDC that he was being suspended with pay for a period of 20 days as follows:

The Employer is currently investigating allegations that you have engaged in inappropriate on duty conduct, including but not limited to allegations of time theft.

Please be advised that pursuant to Article 36(2) of the Public Service of Ontario Act, you are being suspended with pay for a period of twenty (20) days pending investigation. This suspension will remain in effect from July 26, 2018 to August 22, 2018 inclusive and may be subject to renewal.

During your suspension you will be on an administrative schedule from 0900 to 1700 Monday to Friday. Additionally, you are not eligible for any additional shifts or overtime and you are not to attend the institution without the prior approval of the undersigned or designate. For the period of suspension you will be required to make yourself available to attend meeting(s) as required.

Please contact me directly if you have any questions.

3The Complainant, through counsel, wrote to the Employer on August 13, 2018 and made several requests, including that Mr. Croisier’s “full pay be restored during the currency of any suspension”. Counsel for the Employer replied on August 24, 2018, advising that “while suspended with pay pending investigation, Mr. Croisier is being paid his base salary, in addition to any benefit and pension entitlements. Mr. Croisier is not entitled to overtime opportunities while he has been placed on suspension pending investigation. As such, please be advised that the Ministry will not pay Mr. Croisier any overtime or other additional compensation to which he is not entitled.”

4Mr. Croisier filed a Notice of Intention to File a Complaint to the Deputy Minister on August 28, 2018. The Complainant provided the following particulars in the Form 1 – Application he filed with the Board:

1. By letter of July 26, 2018 the Ministry informed the applicant that he was being suspended for a period of 20 days pending an investigation for supposed “inappropriate conduct”. The conduct in question related to, but was not limited to allegations of “time theft”. The suspension was to be “with pay” and was to be non-disciplinary.

2. As a result, the applicant’s law firm wrote a letter on August 13, 2018 to have the terms of the suspension outlined and clarified, One of the chief complaints outlined in the letter was that it appeared, as of August 13, that the Ministry would not be fully compensating the applicant over the course of his suspension. As a result of the failure to so compensate, the applicant’s pay would be reduced by over half.

3. The Ministry responded through its counsel on August 24 by letter. The letter set out the Ministry’s position that the applicant was not entitled to overtime compensation during the period of his statutory suspension, and letters sent directly to Mr. Croisier on August 22 and 31 have since confirmed that his suspension appears to be of an indefinite duration.

4. The applicant, through counsel, filed a complaint to Deputy Minister Erry on August 28, 2018. The complaint outlined the situation above and requested that Mr. Erry conduct an investigation in the matter and, within 30-days, either set up a meeting with our client or issue a decision on the merits: see s 9(3) of O. Reg 378/07. The applicant also informed Mr. Erry that, should the 30-day time-line elapse, the applicant intends to exercise his right to bring a complaint to the Public Service Grievance Board.

5. Not having received a response within the time-line, the applicant now exercises his right to bring his complaint to the Board’s in compliance with s. 10 of the Regulations.

By way of remedy, the Complainant sought compensation for pay in lieu of overtime during the period of his suspension, an order that he return to work as soon as practicable, general damages, a letter of apology, a declaration and any other relief that the Board deems appropriate.

5Mr. Croisier applied for WSIB benefits due to a workplace injury or illness shortly after he was placed on administrative suspension and was approved for benefits effective July 27, 2018. He provided the Employer with medical documentation indicating that he was unable to participate in any investigative meetings. Consequently, the Employer’s investigation has not been completed.

6This matter was initially scheduled to proceed by mediation on May 10, 2019, however, the Employer subsequently raised two preliminary issues and requested that the matter be dismissed prior to the scheduled day of mediation. Counsel for the Complainant objected to the dismissal of the complaint in the absence of a hearing. The board requested written submissions and directed that a decision with respect to the necessity of a hearing would be made after considering the parties submissions on the preliminary motions.

Preliminary motion to dismiss the complaint

7The Employer raises two preliminary objections to the jurisdiction of the Board to hear this complaint:

a. That the decision to suspend the Complainant with pay pending investigation is not properly before the Board as either a complaint regarding a working condition or term of employment or the imposition of discipline as required under Regulation 378/07 (the “Regulation”) of the Public Service of Ontario Act, 2016 (“PSOA” or the “Act”); and

b. That the Complainant failed to comply with the mandatory requirements for filing a complaint set out in s. 8(4) of the Regulation.

8The Employer submitted that the complaint is not authorised under PSOA in that it is neither about a working condition or term of employment nor a disciplinary measure. In the Employer’s submission, it has the authority under sub-section 36(2) of PSOA to impose a non-disciplinary suspension with pay pending investigation and the Complainant has failed to establish an arguable case that the suspension was improper or disciplinary in nature. Consequently, it submitted that the Board had no jurisdiction to hear the complaint.

9In the alternative, the Employer argued that the Complainant was advised of his suspension on July 26, 2018 and was obliged to file his notice of intention to file a complaint within 14 days of that date. He did not give notice until August 28, 2018, which was beyond the timeframe permitted, and he has therefore failed to meet the mandatory timelines for filing a complaint under s. 8(4) of the Regulation. The Employer submitted that the Board has no discretion to waive the timelines and that it consequently has no jurisdiction to hear the complaint.

10Counsel for Mr. Croisier took the position that the Complainant’s administrative suspension amounted to unjustified discipline. The Complainant relied on a number of factors in support of his argument that the suspension was disciplinary. Principally, that the failure to pay him for lost overtime had a disproportionate impact on Mr. Croisier’s income, a large portion of which was attributable to overtime. The Complainant also argued that there was no justifiable reason to investigate Mr. Croisier’s conduct. Moreover, both the duration of the suspension, which has gone on for several months, and the indefinite nature of the suspension were further factors that the Board should consider in determining whether the suspension is properly characterised as disciplinary in nature. Finally, it was submitted that the suspension has had a detrimental and ongoing impact on the Complainant’s reputation.

11Counsel further argued that the Complainant gave notice of his intention to file a complaint in a timely manner. In his submission, the clock did not begin to run until the Complainant received the Ministry’s correspondence on August 24, 2018 confirming that his compensation would not reflect his typical earnings. It was counsel’s view that the July 26^th^ letter “says nothing … about the level of compensation he would receive while on suspension. It gives no indication that what is to be a short suspension would become an indefinite suspension coupled with a massive pay reduction”. It was submitted, therefore, that it would be an error to rely on the July 26^th^ letter as Mr. Croisier was not yet actually aware of the term or condition being grieved. Rather, the Complainant was only required to meet the mandatory timelines after the compensation issue was clarified in the letter of August 24^th^.

12Counsel for the Complainant also urged the Board not to dismiss the complaint without an in person hearing and a full determination on the merits. He submitted that the Board would have to be satisfied that it was “plain and obvious” that the Complainant’s case could not be made out even where all the facts were taken to be true. He suggested that the issues raised by the Complainant with respect to his suspension are fact-sensitive and it would be a denial of procedural fairness to make any adverse findings against him at a preliminary stage of the proceedings.

13In reply, the Employer strongly refuted the assertion that the paid suspension pending investigation was in any way disciplinary. It submitted that the terms of the administrative suspension, including that the employee would not be entitled to overtime, were clearly communicated to the Complainant in its initial letter of July 26^th^. In the Employer’s submission, the Complainant has not presented any material facts to support the bold assertion that his suspension was disciplinary or to support his right to overtime opportunities while suspended.

14It was further submitted that the alleged delay and indefinite nature of the suspension are attributable to the Complainant’s inability to participate in the investigation and do not support the suggestion that his suspension is disciplinary in nature. In any event, it was the Employer’s position that the Complainant is currently sick, has produced medical documentation indicating that he is not fit to participate in any investigatory meetings and, as such, is not fit to work overtime.

15The Employer further maintained that the August 24^th^ letter did not provide any new information. Therefore, the Employer continues to take the position that the Complainant became aware of the material facts on which the complaint is based on July 26^th^ and he was required to give notice of his intention to file a complaint within 14 days thereafter.

Decision

16The Public Service Grievance Board has consistently found that the Regulations under which it operates incorporate strict rules that must be followed before a complaint is properly before it. The Employer in this instance has raised two grounds on which it asserts the complaint should be dismissed: that the subject matter of the complaint is not authorised under the governing Regulation and that the mandatory timelines have not been met.

17With respect to the Employer’s first preliminary motion, challenging whether the subject matter of the complaint is properly before the Board, the Employer says that the suspension was non-disciplinary and a decision to impose it wholly within their authority. The Complainant suggested that it should properly be characterised as disciplinary in nature or an otherwise improper working condition or term of employment.

18The Employer’s argument that it has the statutory authority to impose the suspension is not a full answer to the jurisdictional issue, nor will it be a complete defence to the complaint on the merits. If the suspension is properly characterized as disciplinary in nature, then the Board will have jurisdiction. Even if it is non disciplinary, there are strong arguments that it is nonetheless a complaint about a term of employment or working condition affording the Board jurisdiction to entertain a complaint that the suspension was improper.

19Ultimately, any determination about whether the suspension was improper or disciplinary must be driven by the particular facts in this case. Many of the assertions made by the Complainant require a further evidentiary foundation or have been challenged by the Employer’s characterisation of what transpired. Counsel for the Complainant objected to a dismissal of the complaint without an in-person hearing. I agree that it would not be appropriate to determine the first preliminary issue without a hearing and the opportunity for both parties to call evidence in support of their case.

20Although the Complainant’s submissions opposing the dismissal of the complaint without an in-person hearing are compelling with respect to the first preliminary issue, they are not persuasive with regard to the second. There is no dispute on the essential facts and no further evidence is required to decide whether the Complainant has met the mandatory timelines. The parties agree that the Complainant was initially advised of his suspension on July 26^th^, that he received further communication about his compensation on August24^th^ and that he filed his Notice of Intention to File a Complaint on August 28^th^.

21The only issue before me is one of interpretation: for the purposes of s. 8(4) of the Regulations, when was the discipline imposed or when did the Complainant become aware of the working condition or term of employment that is the subject of his complaint? Was it on July 26, 2018 when he was initially advised that he was suspended, pending investigation, or was it on August 24, 2018 when Employer counsel confirmed that he would only be paid his base salary and not receive pay for lost overtime?

22The issue of mandatory timelines and whether a complainant has complied with the statutory requirements strike squarely at the Board’s jurisdiction. If the timelines have not been met, then the Board cannot proceed to hear the complaint on the merits. The Board is entitled to utilise a process that is efficient and resource sensitive, so long as it ensures that procedural fairness is afforded to both parties. In so doing, there are cases where the most appropriate process is to consider written submissions on a preliminary motion, dispensing with the need for an in person-hearing and/or adjourning a scheduled day of mediation: Taylor v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2017), P-2016-2281(Devins); Morris v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2018), P-2017-0813 (Nairn).

23In my view, this is one of those cases where an in-person hearing is not necessary. The parties in this case were given the opportunity to provide written submissions and the Complainant submitted a lengthy brief with supporting documents. Counsel for the Complainant did not suggest that he needed to call vive voce evidence or present additional facts in order to fully address the timeliness motion. Indeed, he did not mention the timeliness objection at all in his argument that an in-person hearing was required before the preliminary motion is determined. Having now considered the submissions of the parties and the totality of their arguments, I am not persuaded that there is anything to be gained by convening an in person hearing on the issue of whether the Complaint was timely.

24As previously stated, complaints that come before this Board are governed by PSOA and the Regulations that are passed in relation to that Act. Timelines for filing a complaint are set out in Sections 4(1) and 8(4) of the Regulation as follows:

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

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 term of employment 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

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 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.

3. For a complainant 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.

25The Board has considered the filing requirements in s. 8(4) of the Regulation many times, consistently finding that the timelines are mandatory and that failure to adhere to them deprives the Board of jurisdiction to hear the complaint. The Board has also determined that it has no discretion to waive the timelines: St. Amant v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), (2013), P-2012-0601, (Carter). See also, Plouffe v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2017), P-2016-0604, (Nairn), Strong v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2016), P-2015-0638 (Devins); Hasted/Berezowsky v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2016), P-2014-2665 (Nairn).

26In the current case, the Employer’s letter to Mr. Croisier on July 26^th^ is the first possible trigger that notice should be given if the Complainant intended to file a complaint. The letter advised him that he would be placed on an administrative schedule, from 9:00 to 17:00 Monday to Friday and that he was “not eligible for any additional shifts or overtime”. The Employer suggested that Mr. Croisier became aware of all of the material facts when he received this letter.

27The Complainant maintains that he was not aware of the disciplinary nature of his suspension until August 24^th^ when his counsel received a response from Employer counsel stating that he would not be paid for lost overtime; he asserted that this was the first time that he was informed of the compensation structure while on administrative leave.

28Section 8 (4) 2 of the Regulation, which deals with the timelines for a complaint about discipline, requires notice within 14 days of the imposition of the disciplinary measure. Whereas, section 8 (4) 3, which deals with complaints about a working condition or term of employment, specifies that the notice period begins to run after the complainant becomes aware of the term or condition. Neither counsel specifically addressed the different language found in s. 8 (4) of the Regulation, with counsel for the Complainant merely suggesting that he was not aware of the impact on his compensation, and therefore that it was a disciplinary suspension, until he received the Ministry’s August 26^th^ letter of clarification.

29Regardless of whether s. 8 (4) 2 or 3 applies, I have concluded that the Complainant was obliged to give notice of his intention to file a complaint within 14 days of being advised on July 26^th^ that he was being suspended. If the suspension was disciplinary, then notice should have been given within 14 days of when it was imposed, which was on July 26^th^. Alternatively, if the complaint is about an improper working condition or term of employment, I have also concluded that the Complainant was aware of all of the material facts giving rise to his complaint when he was first told that he was suspended and would not be eligible for overtime.

30In my view, the facts do not support the Complainant’s position that he was unaware of the circumstances giving rise to his complaint until August 24^th^. The July 26^th^ letter clearly states that he would not be eligible for overtime. Counsel for the Complainant maintained that the July 26^th^ letter was silent on compensation and that the extent of his compensation was only clarified in the subsequent letter of August 26^th^. I am not persuaded that this is a reasonable interpretation of the information conveyed in the two letters. Mr. Croisier, like all employees, would know that overtime pay is contingent on being offered, available and agreeing to work overtime. Once he was told that he was not eligible for overtime shifts, objectively, the logical conclusion would be that he would not receive compensation in excess of his base salary.

31Moreover, the Complainant’s actions indicate that he fully appreciated the implications of being ineligible for overtime. After receiving the July 26^th^ letter, Mr. Croisier retained counsel who raised the issue of payment for lost overtime with the Employer. In the Form 1, in paragraph 2, the Complainant acknowledges that his lawyer contacted the Employer on August 13^th^ to set out his complaint “that the Ministry would not be fully compensating the applicant over the course of his suspension.” This further demonstrates that the Complainant was aware of the issue that forms the basis for his complaint before he received the Employer’s response.

32Counsel suggested that the Complainant could not have known that the suspension would become of such a long duration when he received the initial letter of suspension and therefore it would be inappropriate to rely on it as a trigger for the mandatory time limits. Again, I do not find this argument persuasive. The most obvious counter point is that the Complainant did not in fact rely on the length of the suspension before filing his complaint. Although counsel now suggests that this might be a relevant factor in determining whether the suspension is disciplinary, the fundamental basis for the complaint that was filed is that the Complainant was deprived of overtime pay during the period of his suspension, not that it has gone on too long. Furthermore, the July 26^th^ letter does advise that the suspension “may be subject to renewal”. Finally, I note that the Complainant has not been able to participate in the investigation giving rise to his suspension due to health reasons and there is no evidence to suggest that there is any other reason the suspension has continued.

33Nor do the cases relied on by the Complainant lead me to a different conclusion. I accept the Complainant’s submission that the Board has found that the time limits run from the date that a complainant becomes aware of circumstances giving rise to the complaint, rather than the mere existence of the term of employment or working condition that is alleged to have been breached: see Courchesne-Godin v. The Crown in Right of Ontario (Ministry of Children and Youth Services) (2017), P-2016-0449, (O’Neil) and Hasted/Berezowsky, supra. That submission, however, offers only limited guidance in this case.

34Gauvin v. The Crown in Right of Ontario (Ministry Safety and Correctional Services) (2017), P-2016-2542, (Nairn) is more instructive. In that case, the employer issued a memo to all managers recognising that they had experienced a prolonged salary freeze and advising that certain measures, including a salary increase, were being introduced. At a subsequent meeting, which neither the complainant nor her representative attended, management clarified that the increase would not be payable to individuals such as Ms. Gauvin who were not employed by a certain date. That limitation was not apparent in the original memo and Minutes of the meeting were not distributed. It was in this context that the Board noted that the complainant first became aware of the limit on eligibility when management clarified the limit in response to her direct inquiries. Management’s clarification was the first time that the complainant received any information that would indicate that she would not be receiving the anticipated increase.

35Counsel for the Complainant relied on Gauvin in support of its position that the Mr. Croisier was not aware of the term that is the subject of his complaint until the Ministry clarified its position on August 26^th^. I do not agree that Ms. Gauvin and Mr. Croisier were in comparable situations. Unlike the facts in Gauvin, where the complainant had never been told that she would not be eligible for a salary increase until she received further clarification from the employer, Mr. Croisier was expressly told that he would not be eligible for overtime when he was notified of his suspension. Having been told that he was not eligible for overtime, the clear implication was that he would therefore not receive the corresponding compensation. The Employer’s response on August 26^th^ clarified this point, however, it did not reveal it for the first time; the second letter merely confirmed the statements contained in the original letter of suspension.

36Counsel also cited the decision of the Board in Laird v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2005), P-2003-0799, (O’Neil), for the proposition that the timelines only begin to run once the subject of the complaint has crystallized. I would note that Laird was a decision of the Board that considered the predecessor Regulation to the one under which the Board currently operates and that the Board held that the timelines under those Regulations were directory only, not mandatory.

37In any event, the Board in Laird emphasized that the timelines ran from the grievor “becoming aware of the complaint”, the language found in that version of the Regulations, which it held was primarily a subjective test “tempered with the objective basis of inquiring when the complaint might reasonably have crystallized”. Stating the test in this way does not alter my conclusion that the complaint crystallized when Mr. Croisier was advised that he was not eligible for overtime during his suspension and that he acted accordingly.

38Compliance with the time limits set out in s. 8 (4) of the Regulation is a pre-condition to the Board’s ability to hear a complaint on its merits and the Board does not have the option of relieving against strict compliance with the notice provisions. I find that the Complainant was required to give notice within 14 days of being advised of his suspension on July 26^th^, 2018. Therefore, his Notice on August 28, 2018 did not meet the timeframe required under s. 8(4) of the Regulations and I consequently do not have jurisdiction to hear his complaint.

39I allow the Employer’s motion and dismiss the complaint.