PSGB# P-2018-3801

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Laforest

Complainant

• and -

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

Employer

BEFORE

Brendan Morgan

Vice-Chair

FOR THE COMPLAINANT

Mario Laforest

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

HEARING SUBMISSIONS

May 27, 2019 July 9, 2019, July 19, 2019 and August 2, 2019

DECISION

A. Background

1The Ministry of the Solicitor General (“SG” or the “employer”) employs the complainant, Mr. Mario Laforest, as a Sergeant (Operational Manager 1). At the time of the filing of this complaint, correctional services fell under the jurisdiction of the Ministry of Community Safety and Correctional Services. (“CSCS”) but has since been subsumed by the “SG”. At all relevant times, the complainant was employed at the Employer’s Toronto East Detention Centre (“TEDC”). The complainant has been employed with the Employer since 1984.

2On March 8, 2019, the complainant filed a complaint with the Board contesting the Employer’s decision to deny him a leave of absence to attend an interview meeting at the employer’s Niagara Detention Centre. The employer’s decision to decline the complainant’s request for a leave of absence resulted, in the opinion of the complainant, the denial of a “Career Development Opportunity”.

3In filing their response the employer raised a preliminary objection that the complaint breached the mandatory process and timelines for filing a complaint as described in Regulation 378/07 (the “Regulation”) of the Public Service of Ontario Act, 2016 (“the Act”). The employer submitted, based on these deficiencies, the Board should dismiss the complaint without proceeding to hear its merits.

4The Board scheduled a mediation session for May 27, 2019. Unfortunately, the mediation session did not result in a resolution of the complainant’s complaint. The issue of the employer’s preliminary objections remained outstanding.

5Following the mediation session, the Board directed the parties to provide written submissions with respect to the employer’s preliminary objections.

B. Facts

6The facts surrounding this complaint are largely not in dispute and are as follows.

7On February 6, 2019 the complainant emailed the employer requesting a leave of absence for a shift that he was scheduled to work on February 12, 2019. He further requested that the employer delay the starting time of his February 13, 2019 shift until later in the workday.

8As discussed above, the complainant requested these changes to enable him to attend at a job interview at the employer’s Niagara Detention Centre in Thorold, Ontario, on February 13, 2019. The complainant received notice from the employer on February 1, 2019 with an offer of an interview for the position. The employer scheduled the interview to commence at 10 o’clock in the morning.

9The complainant requested the leave of absence for the February 12, 2019, shift that began at 1700 and concluded at 0500 hours on February 13^th. According to the complainant, the time to commute from the complainant’s location and the Niagara Detention Centre in Thorold, Ontario, was approximately 1 hour and one-half to two hours, leaving, in the opinion of the complainant insufficient time to reset his “biological clock” in preparation for his interview.

10The complainant requested a delay in the start time of the February 13, 2019 in order to allow him sufficient time to return from the interview and rest before the commencement of his February 13^th shift.

11On February 6, 2019, the employer responded to the complainant’s requests. The Employer advised the complainant that they were declining his request for a leave of absence for February 12^th. Instead, the employer advised that they would approve the complainant’s use of a vacation day or lieu time to accommodate his absence.

12Further, the Employer offered to provide the complainant with “four hours relief” although neither party enjoyed a clear understanding as to how the four hours were to be applied to the situation. Finally, the complainant was advised that he would still be required to complete an eight-hour shift on the 13^th commencing at the normal start time of 1700 hours.

13The complainant responded on February 7^th by advising the employer that, because of their decision not to provide him with a leave of absence he had decided not to disturb his shifts as scheduled. The complainant went on to note that he was opposed to using “my own credits” to attend a Ministry sanctioned interview.

14After receiving notice from the Employer declining the leave of absence the complainant forwarded emails to two other individuals described in paragraphs 29 through 31, below, requesting clarification and assistance with respect to his request. These email exchanges are dated February 7 and 8, 2019 and February 7, 2019, respectively.

15The complainant did not attend the February 13, 2019 job interview at the Niagara Detention Centre. On Wednesday, February 13, 2019 he emailed Jessica Gallagher, Human Resources Business Co-ordinator at MCSCS, advising that he would not be attending the interview because “it would not be in my best of interest to safely commute the distance from Brampton (my residence) to Niagara and return to TEDC (Scarborough) as requested by my employer”.

16On February 15, 2019, the complainant forwarded an email to Deputy Superintendent (Operations) Perkins. The complainant copied the email to the attention of Superintendent Timoli at TEDC and Deputy Minister Erry. The complainant described the situation and indicated that the employer had denied his request for a leave of absence. He went on to state that the decision of the employer had denied him the opportunity to advance his career. He requested that the situation be resolved by either placing him in a Deputy Superintendent’s position at the TEDC for a period of 5 months or by providing him with financial compensation.

17On March 8, 2019, the complainant filed a Form 1- Application with the Board. The Application did not, at that the time of filing, contain a notification to the Deputy Minister as required by Section 8(1) of Regulation 387/07, (the “Regulation) of the Public Service of Ontario Act, 2006 (the “Act”). The Board made the complainant aware of this deficiency immediately after he filed the Application.

18The complainant replied to the Board on March 15, 2019. At that time, a copy of the February 15, 2019, correspondence between himself and Deputy Superintendent Perkins was forwarded to the attention of the Board. The complainant described this document as his “Notice of Intent” as required by the Regulation.

19On March 25, 2019, the Board notified the employer of the Application and on April 26, 2019, the Employer filed its Form 2 Response. As mentioned in paragraph 5, above, the parties subsequently filed written submissions addressing the Employer’s preliminary objections.

C. Employer’s Procedural and Timeliness Objections and the Parties Submissions

20The following represents the totality of the employer’s initial and subsequent reply submissions and the complainant’s submissions.

21The employer submits that the complaint should be dismissed because the complainant’s application failed to adhere to both the mandatory notice and timelines requirements for the filing of a complaint as described in Regulation 378/07 of the Act.

22The employer relied upon the following provisions from the Regulation:

Complaint about a working condition or 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 the 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:

9. 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:

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.

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.

(3) If the complainant was required to give a deputy minister notice of the proposal to make a complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of,

(a) the day that is 30 days after the meeting; or

(b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint.

(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 provide d for dispute resolution expires 30 days after the notice was given to the deputy minister or chair.

23In its written submissions the employer stated that the complainant’s Application failed to adhere to the mandatory requirements set out in sections 4, 8 and 9 of the Regulation. It was the position of the employer that if the Board was to determine that the complainant had breached one or all of these sections the Board lacked the jurisdiction to rectify the complainant’s contravention of the Regulation. If so determined, the Board must dismiss the Application.

24Counsel submitted that the complainant became aware of the employer’s decision to deny his leave of absence request on February 7, 2019. Counsel added that the complainant’s written submissions supported the employer’s position where he stated that, after becoming aware that his request had been denied, he emailed the employer and advised that he would be accessing alternative measures to attend the interview.

25Based on that evidence the Counsel submitted that the complainant was governed by the mandatory time lines set out in sections 8(4) (3) which had been breached. He failed to adhere to the timelines for filing and therefore the complaint must be dismissed.

26The employer further submitted that Section 8(1) (1) of the Regulation required the complainant to file a notice with the Deputy Minister. This requirement, in the submission of the employer, is mandatory and the Board has no jurisdiction to relieve against any failure to file as required by the Regulation.

27With respect to this position, Counsel submitted that the complainant’s “Notice of Intent” did not meet the requirements described in sections 4 and 8 of the Regulation. The email dated February 15, 2019, was directed to Deputy Superintendent (Operations) Perkins and not the Deputy Minister. The notice was not “directed to the attention” of the Deputy nor did the complainant receive “confirmation from the Deputy Minister that a Notice of Intent was received.”

28Section 8(1) (1) requires that a complainant in this instance be required to provide notice to “his or her deputy minister.” In the matter before the Board, the requisite notice was not provided to the Deputy Minister but rather to Deputy Superintendent (Operations) Perkins. As a result, the notice did not comply with the mandatory provisions set out in Section 8(1) and the Board must therefore dismiss the complaint.

29Finally, Counsel for the employer submitted that the complaint breached Section 9 of the Regulation. Section 9(1) prohibits a complainant from filing a complaint with the Public Service Grievance Board until the dispute resolution period described later in the Section has expired. In the matter before the Board, the relevant time line is described at Section 9. (5), that being 30 days after the notice was given to the Deputy Minister.

30While not conceding that the February 15, 2019 email that was copied to the deputy minister constituted proper notice, Counsel submitted that if it was found to be the earliest date for filing a complaint with the Board would have been March 17, 2019. The March 8, 2019, filing date fell within the 30-day dispute resolution period and, as a result, the complaint was filed prematurely with the Board. Given that the Board lacked the jurisdiction to amend time limits the only response available to the Board would be to dismiss the complaint.

31In response, the complainant took the position that he had complied with all of the mandatory timelines and procedural requirements described in the Regulation. The complainant submitted that the Application was timely for two particular reasons. First, in response to the employer’s position that he was aware on February 7, 2019, that the leave of absence had been denied, the complainant submitted that this was not an accurate description of the events. In the view of the complainant, an ongoing dialogue continued between himself and the employer about possible alternative solutions.

32The complainant directed the Board to two particular email exchanges, dated February 7 and 8, 2019 and February 7, 2019. The February 7 and 8, 2019, exchange is between the complainant and Chad Darrah, Human Resources Advisor at the Ministry of Government and Consumer Services while the second email correspondence took place between the complainant and Donata Calitri-Bellus. According to the information contained in the correspondence Calitri-Bellus is a Deputy-Director at the Employer’s Central Regional Office.

33The complainant contacted Darrah on February 7, 2019, and requested information about the Employer’s guidelines when an employee requests a leave of absence and whether his request met those guidelines. Darrah responded the following day, and advised that requests for leave were determined on a discretionary basis and suggested that the complainant share all the details surrounding the request.

34With respect to the correspondence between the complainant and Caltri-Bellus on February 7, 2019, the Complainant sought assistance for approval of his leave request to attend the interview. He provided the details with respect to the relevant shift and the location and time of the interview. Caltri-Bellus responded three hours later and advised, that not only was his request incomplete but he should be redirecting his request to Senior Administration at the TEDC.

35Based on these two email exchanges the complainant submitted that the request for a leave remained unresolved. Having not heard from anyone in a supervisory position after that he wrote to Deputy Superintendent (Operations) Perkins on February 15, 2019, copied to the Deputy Minister, to voice his objection about the denial of leave of absence request.

36The complainant further submitted that he did not file a complaint on February 7, 2019, or soon thereafter, as he believed that the process for providing him with the leave was yet to be exhausted. In the opinion of the complainant, “any complaint prior to the matter occurring would be assumption of the fact without allowing for due process.”

37The complainant further submitted that the general practice of the Employer with respect to leaves of absence requests was significantly different from what he had experienced in this matter. To that effect, the complainant submitted that the leave of absence process was under general review in twenty-one other instances and suggested his request should be added to this process.

38In the submission of the complainant, all of the above facts and supporting correspondence support his position that he filed the complaint in accordance with Section 8(3) (1) of the Regulation.

39The Complainant maintained that he had provided notice to the Deputy Minister as required by Section 8(1) of the Regulation. The submission of the complainant pointed to the inclusion of the Deputy Minister as a copied party in the February 15, 2019 email to Deputy Superintendent (Operations) Perkins. This, the complainant submitted satisfied the notice provisions to the Deputy Minister required by the Regulation.

40As a result, the complainant maintained that he had also met the time lines for filing as described in section 8(4) (3).

41Given all of the above, the complainant submitted that the Board should dismiss the employer’s preliminary objections and proceed to a hearing of the merits of the Application.

42In addition to relying upon the provisions of the Regulation, the Board was referred to the following authorities for consideration: Taylor v. Ontario (Community Safety and Correctional Services), 2017 CanLII 65620 (ON PSGB); Ashdown et al v. Ontario (Community Safety and Correctional Services), 2017 CanLII 16732 (ON PSGB); Hasted/Berezowsky v. Ontario (Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB); Muldoon v. Ontario (Community Safety and Correctional Services), 2011 CanLII 83724 (ON PSGB); Stricko v. Ontario (Community Safety and Correctional Services) 2017 CanLII 25425 (ON PSGB); Alemu v. Ontario (Children, Community and Social Services) 2018 CanLII 109223 (ON PSGB).

D. Decision – Preliminary Objections

43The Board has carefully reviewed and considered the written submissions and authorities received from the parties. For reasons that follow, I must conclude that the complaint initiated by the complainant does not adhere to certain mandatory requirements set out in Regulation 378/07.

44The Board agrees with the employer’s Counsel that the complainant has failed to comply with section 9. (1) (5). The complainant filed the complaint with the Board on March 8, 2019 some ten days before the 30-day resolution period expired on March 17, 2019. As the Board lacks the jurisdiction to amend the mandatory time limit prescribed in the Regulation the only alternative is to dismiss the complaint without resorting to a hearing of the merits.

45In coming to this conclusion, the decision should not be interpreted, as acknowledging that the email copied to the deputy minister on February 15, 2019, constitutes proper notice as contemplated by Section 8. (1) (1). Given that the Board has determined that the complaint should be dismissed because it was filed before the dispute resolution period expired, it is not necessary to decide whether copying the Deputy Minister on an email to a third party constitutes notice under section 8. (1).

46It is indisputable that the Board lacks the jurisdiction to rectify complaints where a complainant has failed to adhere to certain mandatory timelines set out in the Regulation. This has been the conclusion of the Board in numerous decisions such as Jackson v. Ontario (Community Safety and Correctional Services), 2011 CanLII 36564 (ON PSGB), Stricko v. Ontario (Community Safety and Correctional Services), 2018 CanLII 77340 (ON PSGB), and Hasted /Berezowsky v. Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB). These authorities represent the proposition that once the timelines have been determined to be breached, by the complainant, the Board is left with no alternative but to dismiss the complaint in its entirety.

47Section 9. (1) of the Regulation is clear and unambiguous. It 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).

48Section 9. (5), which is the applicable sub-section in the matter before me is again clear and unambiguous. It states:

(5) If the deputy minister or chair or chair of the Public Service Commission, as the case may be, or his or her delegate does not meet with the complainant within thirty 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).

49Based on the agreed upon chronology of this matter, the Board concludes that the expiration of the dispute resolution process would have been March 17, 2019. The application was filed with the Board on March 8, 2019. It is therefore untimely.

50The complainant’s submissions were virtually silent on this issue. His focus was on the demonstrating that the email notice of February 15, 2019, constituted proper notice for the purpose of Section 8. (1). Even if that were found to be the case, it would not assist him in curing the breach of the mandatory section 9. (1) (5) timeline.

51As mentioned above, the employer raised two other preliminary objections; that the complainant had failed to give proper notice to the Deputy Minister pursuant to section 8. (1) (1) and, further, had breached the timelines described in section 8. (4) (2) of the Regulation. Given the conclusion that the Board has reached with respect to the 9. (1) (5) breach it is unnecessary for the Board to make a determination with respect to these two other preliminary objections.

52The complaint is hereby dismissed.