PSGB# P-2019-2582

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Barker

Complainant

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Andrew Tremayne

Vice-Chair

FOR THE COMPLAINANT FOR THE EMPLOYER

David Barker Sean White

Treasury Board Secretariat Legal Services Branch Counsel

HEARING SUBMISSIONS

August 28, 2020 Written submissions completed September 15, 2020

Decision

1This decision deals with the employer’s preliminary objections to the Board’s jurisdiction to hear and decide Mr. Barker’s complaint on the merits. These objections relate primarily to whether the subject matter of the complaint (Mr. Barker’s 2018-2019 performance review) falls within the Board’s jurisdiction, whether the complaint was brought forward and referred to the Board within the Board’s mandatory timelines, and whether the complaint does not disclose a prima facie case that the employer has breached a term or condition of Mr. Barker’s employment. The employer acknowledges that it bears the onus to demonstrate that the complaint should be dismissed without a hearing on the merits.

2Mr. Barker disagrees with the employer’s objections, arguing that they should be dismissed and that the Board should hear his complaint on its merits. He also argues that his 2018-2019 performance review was a reprisal against him for reporting wrongdoing and his complaint that the limitations on the Board’s jurisdiction and the Board’s mandatory timelines do not apply to reprisals. The employer replies that the complaint does not make out a prima facie case of reprisal under the relevant section of the Public Service of Ontario Act, 2006 (PSOA).

3For reasons set out below, the employer’s preliminary objections to the Board’s jurisdiction to hear and determine this complaint are upheld. The complaint is dismissed and will not proceed to be heard on the merits.

Background and Context

4For the purpose of this decision, the Board assumes that the facts as set out in the complaint are true and can be proven. A brief review of the substance of the complaint is helpful to provide background and context. Mr. Barker is the District Resource Management Supervisor at the Geraldton office of the Ministry of Natural Resources and Forestry. He reports to the District Manager, Chris Magee. Approximately eight employees report directly to Mr. Barker.

5Mr. Barker alleges that beginning in 2015, Mr. Magee failed to address, or addressed inappropriately, Mr. Barker’s concerns regarding “the toxic nature of the Geraldton Field Office.” In particular, Mr. Barker alleges that one employee in the field office bullied and harassed him and many of the employees who report to him. Mr. Barker attempted to deal with the situation, but Mr. Magee failed to support him. Sometime in 2018, Mr. Barker contacted his Regional Director and asked for her assistance in dealing with the situation. There was a workplace investigation, and eventually, the employee who was believed to be the source of the problem left the Ministry in early 2020.

6In October 2019, Mr. Barker learned that his performance rating for 2018-2019 was “Effective – met most expectations.” Based on earlier discussions with Mr. Magee, Mr. Barker expected that his rating would be “Fully effective – met all expectations,” which would have come with a 2% pay increase. Mr. Barker says that Mr. Magee told him that the lower rating was because of poor staff morale in the office. Mr. Magee also told Mr. Barker that he was upset because Mr. Barker had told the Regional Director about a comment Mr. Magee had allegedly made to one of Mr. Barker’s staff. The comment was to the effect that the employee might want to reconsider accepting a promotion if it meant having to work more closely with the problem employee.

7Mr. Barker alleges that the poor staff morale in the Geraldton Field Office was due to the failure of Mr. Magee and others to support him in addressing the situation with the problem employee. He also alleges that the lower rating is retaliation by Mr. Magee for seeking direct help from the Regional Director to deal with the problem employee when Mr. Magee would not support him.

8Mr. Barker sent his notice of a proposal to file a complaint (from now on referred to as a “notice of proposal” or simply a “notice”) on November 8, 2019. He filed his complaint (Form 1) with the Board on January 22, 2020.

9In his complaint, Mr. Barker requests the following remedy:

1. Adjustment of my 2018/19 Performance Rating to reflect the verbal commitment made by my Manager on May 7, 2019

2. A wage adjustment (increase) retroactive to April 1, 2019

3. Failing the above, damages to compensate for lost wages and pension benefits over the remainder of my life

4. Any damages that the Board sees fit to address Senior Management failure to deal with known toxic issues which negatively impact the majority (including myself) of staff who work in the Geraldton Field Office.

Statutory Framework

10It is useful to briefly review the Board’s statutory framework to place the employer’s preliminary objections in context.

11The Board only has the powers granted by the Public Service of Ontario Act (PSOA) and the regulations made under that legislation, notably Regulation 378/07 (also referred to as the “Regulation”), which states as follows:

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,

(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

1. The term or duration of the public servant’s appointment to employment by the Crown.

2. The assignment of the public servant to a particular class of position.

3. A dismissal without cause under subsection 38(1) of the Act or a matter relating to such a dismissal.

4. The evaluation of a public servant’s performance or the method of evaluating his or her performance.

5. The compensation provided to or denied to a public servant as a result of the evaluation of his or her performance.

[emphasis added]

12Turning to the parties’ disagreement about the timeliness of the complaint, Regulation 378/07 sets out a particular set of time limits or “windows” of time in which steps must be taken to file complaints about discipline or terms and conditions of employment. For complaints concerning a working condition or a term of employment, notice of a proposal must be given to the deputy minister within 14 days after the complainant becomes aware of the working condition or a term of employment giving rise to the complaint.

13Once notice is given to the deputy minister, the Regulation creates a dispute resolution period, which must expire before the complainant is entitled to file a complaint with the Board [s. 9(1)]. A complaint will be untimely in the sense of being too early if filed before that dispute resolution period has expired. It will be 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 between the complainant and the deputy minister (or delegate) within 30 days after receipt of the complainant’s notice of proposal.

14If 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 [s. 9(5)]. If there is a meeting between the complainant and the deputy minister (or delegate) within those same 30 days, the end of the period of dispute resolution is changed to the earlier of the day that is 30 days after the meeting, or the day on which the deputy minister gives written notice to the complainant of their decision about the proposed complaint [section 9(3)]. The end of the dispute resolution period opens a 14 day “window” for the filing of a complaint.

15Finally, section 139 of the PSOA protects employees from reprisals in certain circumstances. “Part VI – Disclosing and Investigating Wrongdoing” states as follows:

139 (1) No person shall take a reprisal against a public servant because he or she has,

(a) sought advice about making a disclosure about wrongdoing in accordance with this Part;

(b) made a disclosure about wrongdoing in accordance with this Part;

(c) co-operated in an investigation or other process related to a disclosure of wrongdoing made in accordance with this Part;

(d) acted in compliance with this Part; or

e) sought enforcement of this Part. 2006,

16The types of “wrongdoing” contemplated by the PSOA are as follows:

108 (1) In this Part, “wrongdoing” means,

(a) a contravention by a public servant, a minister or parliamentary assistant of an Act of the Assembly or of the

Parliament of Canada, or of a regulation made under such an Act,

(b) an act or omission of a public servant, a minister or parliamentary assistant that creates a grave danger to the life, health or safety of persons or to the environment, where the danger is unreasonable having regard to his or her duties, powers and functions and any other relevant circumstance,

(c) gross mismanagement by a public servant, a minister or parliamentary assistant in the work of the public service of

Ontario,

(d) directing or counselling wrongdoing within the meaning of clauses (a) to (c) by a public servant, a minister or parliamentary assistant.

17Disclosures of wrongdoing may only be made in one of two ways: either to a public servant’s Ethics Executive (in accordance with the procedures established set out by the Public Service Commission as contemplated by s. 115 of the PSOA) or directly to the Office of the Integrity Commissioner (in accordance with s. 116 of the PSOA).

The Parties’ Submissions

18The employer submits that the main focus of Mr. Barker’s complaint is his performance rating for 2018-2019. While the complaint mentions several other alleged issues in the workplace, these are too dated and have not at any point in the past given rise to a complaint to this Board. It was only when Mr. Barker received a performance rating of “Effective – Met Most Expectations” that he formally raised any issues about the terms and conditions of his employment and engaged the Board’s formal complaint process.

19When he submitted his complaint (Form 1) to the Board, Mr. Barker referred to the January 13, 2020 letter from the Deputy Minister responding to his notice of proposal. In this section of his complaint, Mr. Barker states that the Deputy Minister “[failed] to address the two main issues that [he] raised with her delegate regarding the basis of my complaint” and which are set out as:

1. A “clear and binding commitment” by Mr. Magee to rate his 2018/2019 performance as “fully effective” at a May 7, 2019 meeting; and

2. That Mr. Magee gave a “lower rating as a reprisal for my continued highlighting of toxic activities” which continue to occur in the Geraldton Office.

20Concerning the first “main issue” listed by Mr. Barker, the Employer reiterates the Board’s lack of jurisdiction to consider this issue. This is because it relates to an evaluation of his performance and compensation denied due to that evaluation, which is precluded from the Board’s jurisdiction by subsection 4(2) of the Regulation 378/07, as set out above.

21As to the second “main issue,” the employer argues that Mr. Barker has failed to allege facts that make out a prima facie case of reprisal given the requirements of section 139 of PSOA.

22Furthermore, the employer points to the remedies requested by Mr. Barker (see above) as additional support for its argument that this complaint is all about Mr. Barker’s performance rating, which is prima facie inarbitrable under the Regulation. The first three remedies sought are related to Mr. Barker’s misgivings about his performance review and rating. The fourth appears to be related to generalized allegations of a failure by management to address workplace issues. However, there are no facts alleged in the Complainant on which to base a remedy.

23Accordingly, argues the employer, on review of Mr. Barker’s own assessment of the main “issues” raised by his complaint, as well as the above submissions, the Employer requests that the Board dismiss the complaint in its entirety for want of jurisdiction, and without any hearing on the merits.

24Mr. Barker argues that his performance rating for the 2018-2019 year was a reprisal for his “continued highlighting of the toxic activities which continue to occur in the Geraldton Office.” Mr. Barker further contends that this is contrary to section 139 of PSOA, which protects employees from reprisals in connection with a disclosure of wrongdoing made under Part VI of the PSOA.

25The employer concedes that subsection 4(3) of Regulation 378/07 dictates that the timelines for filing a complaint do not affect a public servant’s right to file a complaint under Part VI of the PSOA. However, no such disclosure under section 139 has been properly made in this case, nor is one alleged to have been made, argues the employer.

26The employer submits that disclosures of wrongdoing may only be made in one of two ways: directly to the Integrity Commissioner (in accordance with section 116 of the PSOA), or pursuant to the established procedures set out in any directive made by the Public Service Commission (in accordance with section 115 of the PSOA). The Disclosure of Wrongdoing Directive dictates that disclosure may be made to an employee’s ethics executive (in this case, the Deputy Minister) or directly to the Integrity Commissioner (section 7.2).

27The type of wrongdoing that may be subject to disclosure and is entitled to protection from reprisal under section 139 is set out in section 108 of the PSOA and is described in greater detail in section 7.1 of the Directive as follows:

• A contravention of an Act (federal or provincial) or Regulation,

• Acts or omissions that create a grave danger to life, health or safety of persons, or to the environment,

• Gross mismanagement (e.g., gross waste of money, abuse of authority, abuse of public assets),

• Directing or counselling a person to commit a wrongdoing listed above.

[Treasury Board Secretariat, Disclosure of Wrongdoing Directive]

28The employer submits that Mr. Barker has not alleged facts in his complaint (Form 1) that could reasonably fall into any of the above-noted categories of wrongdoing for the purposes of a disclosure that would be protected by section 139 of the PSOA.

29Further, Mr. Barker has not provided evidence of a disclosure of alleged wrongdoing either to his ethics executive (the Deputy Minister) or directly to the Integrity Commissioner. In other words, Mr. Barker has failed to set out facts that, if accepted as true, would constitute a prima facie case for reprisal under section 139 of the PSOA, submits the employer.

30Mr. Barker says that he contacted his Regional Director in 2018 to ask for assistance in dealing with an employee who was bullying and harassing him and many of the employees who report to him. He did this because Mr. Magee had inappropriately addressed, or failed to address, the situation. In other words, argues Mr. Barker, he was standing up to management inaction in the Geraldton Field Office by bringing Mr. Magee’s mismanagement of the situation to the attention of a higher level of management, and these are the actions of a whistleblower.

31The tool that the employer used to retaliate against him for doing this was the performance review system, argues Mr. Barker. Specifically, Mr. Magee punished him by giving him an “Effective – met most expectations” rating for 2018-2019, which meant that he did not receive a 2% pay increase.

32Mr. Barker says that he was given two performance ratings in 2018/19. The first was provided verbally on May 7, 2019 during a conversation with Mr. Magee which was held specifically to discuss his year-end performance plan and when Mr. Magee told him that his performance was “fully effective.” Mr. Barker says that he understood this to mean that there were no deficiencies in his performance, because Mr. Magee did not mention any. He contends that in the absence of any stated deficiencies, a reasonable person would understand that to mean that his previous rating of “Fully effective – met expectations” would not change.

33In the fall of 2019, he was given a second, different performance rating. He met with Mr. Magee on October 7, 2019, who told him that he was a valued and experienced member of the management team and that he gets his job done. Mr. Magee told him that he had given him a lower rating “Effective – met most expectations” because there had been a “dip” in how staff in the Geraldton office were feeling. He also told Mr. Barker that he did not remember the details of their May 7, 2019 conversation.

34Mr. Barker argues that any “dip” associated with the feelings of staff in the Geraldton office was directly related to the lack of senior management action in dealing with the “toxic nature of the Geraldton Field Office” and their failure to deal with the employee in the field office who bullied and harassed Mr. Barker and many of the employees who report to him. Mr. Barker also contends that Mr. Magee was frustrated with him for asking for support from more senior management, particularly the Regional Director, in dealing with the problem employee.

35Turning to the timeliness of the notice of proposal and the filing of the complaint, the employer argues that the Board’s well-established jurisprudence makes it abundantly clear that if a complainant fails to adhere strictly to the timelines as set out in Regulation 378/07, the Board has no jurisdiction to hear the complaint and it must be dismissed.

36The employer argues that the main focus of the complaint is that Mr. Barker was displeased with his performance rating for the 2018-2019 year. He views his performance rating as a reprisal for his having raised workplace concerns. He further relies on a conversation he alleges he had with Mr. Magee on or about May 7, 2019 regarding his performance rating for the 2018-2019 year.

37The employer asserts that final performance ratings for 2018-2019 were made available to employees to view online on or about September 16, 2019, and Mr. Barker ought to have been aware of his performance rating at that time. In any event, by his own admission, and based on the information in the complaint (Form 1), Mr. Barker was aware of the alleged “breach” of his working conditions (the performance rating) by at the latest October 7, 2019 when he learned directly from Mr. Magee that his rating would be “Effective – met most expectations” and not, as he had expected based on an earlier conversation with Mr. Magee, “Fully effective – met all expectations” (which would have come with a 2% pay increase).

38Mr. Barker should have therefore sent the requisite notice to the deputy minister by no later than October 21, 2019, or fourteen (14) days later as envisioned by subsection 8(4) of the Regulation. There is no dispute that Mr. Barker sent his notice of proposal on November 8, 2019, which is 18 days late.

39In the alternative, should the Board not accept this timeliness argument as a reason to dismiss the complaint in its entirety, the employer submits that the complaint (Form 1) was forwarded to the Board on January 22, 2020, which is approximately 1 month after the expiry of the dispute resolution period pursuant to subsections 9(5) and 10(1) of the Regulation.

40To review the chronology of events, which is not in dispute, Mr. Barker forwarded his notice of proposal to the Deputy Minister on November 8, 2019. A meeting was held with the complainant and the Deputy Minister’s delegate thirty- three (33) days later, on December 11, 2019.

41Subsection 9(5) of the Regulation provides that where the deputy minister or delegate does not meet with the complainant within 30 days after receiving the notice, the period for dispute resolution expires 30 days after the notice was given to the deputy minister or chair. As noted above, a meeting was held thirty-three (33) days after the notice was given to the deputy minister. Therefore, as there was no meeting “within 30 days” as required by subsection 9(5), the period provided for dispute resolution expired 30 days after the date notice was given. In this case, the dispute resolution period expired 30 days after November 8, 2019 – namely, on December 8, 2019.

42Pursuant to subsection 10(1), the complainant had fourteen (14) days after the expiry of the dispute resolution period to file his complaint (Form 1) with the Board, or until December 22, 2019. Mr. Barker filed his complaint (Form 1) with the Board on January 22, 2020, or approximately one month late.

43The employer does not dispute that Mr. Barker’s meeting with the Deputy Minister’s delegate took place on December 11, 2019, nor does it disagree that this date was proposed by an Employee Relations Advisor on behalf of the delegate. The employer asserts that this date was arranged to accommodate Mr. Barker’s schedule and that in any event, the relevant email exchange between the parties shows that the employer made it clear that the meeting date was without prejudice to any position that the Ministry may take in this matter.

44Accordingly, the employer submits that under sections 9 and 10 of Regulation 378/07 and the Board’s well-established jurisprudence, the Board has no jurisdiction to hear this untimely complaint and no discretion to extend the statutorily mandated timelines. The employer respectfully asks that the complaint be dismissed in its entirety and without any hearing on the merits.

45Mr. Barker says that in October 2019, he found out that he would be receiving an “Effective – met most expectations” rating for 2018-2019. Mr. Barker says that he contacted the Regional Director, who told him that it would be unlikely that the rating would have a real impact on his salary because the Regional Director believed that there would be no raises for anyone that year. The Regional Director also encouraged Mr. Barker to discuss his concerns directly with Mr. Magee to see if it would be possible to reach some resolution. On November 8, 2019, Mr. Barker was made aware that his good faith attempts to resolve his complaint directly were denied, and it was that day that he sent his notice to the Deputy Minister.

46Concerning the filing of his complaint (Form 1) with the Board, Mr. Barker says that on November 27, 2019, he was contacted by an Employee Relations Advisor on behalf of the Deputy Minister’s delegate seeking an extension of time for the dispute resolution meeting. December 11, 2019, was proposed, Mr. Barker agreed, and the meeting took place on that date as scheduled.

47Mr. Barker says that before January 11, 2020, he contacted the Employee Relations Advisor who had participated in the December 11, 2019 meeting to ask if the Deputy Minister or the delegate would be responding. He was assured that the Deputy Minister would respond but to expect a delay.

48Mr. Barker received a response on January 13, 2020. He left for an out of country vacation on January 15, 2020, and returned on January 20, 2020. He filed his complaint with the Board on January 22, 2020, nine days after the Deputy Minister’s response.

Analysis and Findings

49The first issue to be decided is whether the complaint is essentially about Mr. Barker’s 2018-2019 performance evaluation and/or the compensation provided or denied to him due to that performance evaluation. Subsection 4(2)2 of Regulation 378/70 has removed both of these subjects from the Board’s jurisdiction.

50In his complaint, Mr. Barker describes the situation in the Geraldton Field Office at length beginning in 2015. The focus of the description is the allegation that one employee bullied and harassed Mr. Barker and many of the employees who report to him. Mr. Barker attempted to deal with the situation, but Mr. Magee failed to support him. In 2018, Mr. Barker contacted his Regional Director and asked for assistance in dealing with the situation. There is no dispute that eventually, a workplace investigation took place and that the employee who was believed to be the source of the problem eventually left the Ministry in early 2020.

51However, Mr. Barker filed his complaint on November 8, 2019, when the workplace situation had yet to be resolved, and the problem employee was still there. As a result, the information in the complaint about bullying and harassment in the Geraldton Field Office, whether it may have led to a toxic workplace, and whether Mr. Magee addressed it inappropriately or not at all, is relevant only insofar as it provides a factual context for the main focus of the complaint, which is Mr. Barker’s 2018-2019 performance rating. This is clear from the final paragraphs of the notice of proposal which he filed on November 8, 2019, where Mr. Barker refers to the performance rating that he received in October 2019 and which was lower than he expected:

I contend that any “dip” associated with the feelings of staff are directly related to the lack of senior management action to my repeated appeals for action.

I contend that Chris Magee is frustrated that I continue to ask for skilled assistance to protect myself and my staff. Further I contend that he is upset that I decided in the 2018/19 fiscal to seek direct help from the Regional Director in the absence of his support.

I contend that is the sole reason for his lower rating on my Performance Appraisal.

I seek an adjustment to my Performance Rating and I seek the 2% raise that would apply had Chris honoured his word of the May 7, 2019 ranking. In the absence of that I seek punitive damages to compensate me for loss of income over my lifetime (for the rest of my career and during retirement) related to this inappropriate behaviour of my Manager.

52In his complaint (Form 1), Mr. Barker sets out a more lengthy description of the events leading up to the October 2019 performance review and includes more details about the Geraldton Field Office situation and Mr. Magee’s alleged inaction. However, the focus of the complaint is the same as in the notice of proposal:

I contend that any “dip” associated with the feelings of staff are directly related to the lack of senior management action to my repeated appeals for action. I have consistently expressed my frustration regarding lack of action to deal with documented aggressive behaviour.

I contend that Chris Magee is angry that I continue to ask for skilled assistance to protect myself and my staff. Further I contend that he is upset that I decided in the 2018/19 fiscal to seek direct help from the Regional Director in the absence of his support.

I contend that the sole reason for his lower rating on my Performance Appraisal is that he is retaliating against me for taking these steps to protect my staff and myself.

53Mr. Baker also adds the following statement regarding the response to his November 8, 2019 notice of proposal:

The Deputy Minister’s January 13, 2020 response letter (attached) fails to address the two main issues that I raised with her delegate regarding the basis of my complaint.

1. I contend that Chris Magee made a direct, clear and binding commitment to rate my 2018/19 performance as “fully effective.” He did so verbally in a meeting on May 7, 2019 - a meeting set up specifically to discuss the year end results of the Performance Process.

His statement is binding upon both himself and the Ministry (as he was acting as an agent of the Ministry at the time). When he clandestinely changed the rating, subsequent to our discussion, he has acted deceitfully and has dishonoured both himself and the Crown.

2. I contend that Chris Magee has made this lower rating as reprisal for my continued highlighting of the toxic activities which continue to occur in the Geraldton Office. His reprisal is contrary to Section 139 of the Public Service Act of Ontario.

I further contend that Chris Magee is using his position of authority to attempt to silence me - hoping that I will cease to lobby for corrective measures to be taken.

54Finally, in the remedy section of the complaint (Form 1) Mr. Barker requests the following:

1. Adjustment of my 2018/19 Performance Rating to reflect the verbal commitment made by my Manager on May 7, 2019

2. A wage adjustment (increase) retroactive to April 1, 2019

3. Failing the above, damages to compensate for lost wages and pension benefits over the remainder of my life

4. Any damages that the Board sees fit to address Senior Management failure to deal with known toxic issues which negatively impact the majority (including myself) of staff who work in the Geraldton Field Office.

55No matter how one views the situation in the Geraldton Field Office, two things are clear: the focus or “nub” of Mr. Barker’s complaint is his 2018-2019 performance rating, and the remedy that the Board is being asked to grant is entirely responsive to the allegations about the same performance rating. Mr. Barker wants his 2018-2019 performance rating to be changed from “Effective – met most expectations” to “Fully effective – met all expectations” and to receive the 2% pay increase that would have accompanied the higher rating. Section 4(2) of Regulation 378/07 is clear that the Board has no jurisdiction over either of these subjects. As the Board’s jurisprudence clarifies, in areas where the Board lacks jurisdiction, it has no remedial authority, even in cases of mistake or miscalculation.

56The exception would be a situation where a complaint is filed under Part VI of the PSOA because Regulation 378/07 is clear that section 4(2) “does not affect the right of a public servant to file a complaint under Part VI”. This will be addressed after the review and analysis of the parties’ submissions on the employer’s timeliness objection, which follows next.

57The employer submits that when Mr. Barker met with Mr. Magee on October 7, 2019, he knew that his performance rating would be “Effective – met most expectations.” Based on earlier discussions with Mr. Magee, Mr. Barker expected that his rating would be “Fully effective – met all expectations,” which would have come with a 2% pay increase. Mr. Barker says that on this date, Mr. Magee also told him that the lower rating was because of poor staff morale in the office. In other words, argues the employer, Mr. Barker had all of the information he needed to send a notice that he intended to file a complaint on that day. As a result, the 14-day time limit began to run on October 7, 2019, and it expired on October 21, 2019, so when Mr. Barker sent his notice of proposal on November 8, 2019, it was past the time limits.

58Mr. Barker says that after he met with Mr. Magee on October 7, 2019, he contacted the Regional Director, who told him that it would be unlikely that the rating would have a real impact on his salary. The Regional Director also encouraged Mr. Barker to discuss his concerns directly with Mr. Magee to see if there was a possible resolution. Mr. Barker says that he made good faith attempts to do this, but on November 8, 2019, he learned that there would be no resolution, at least with Mr. Magee. This was the day that he sent his notice to the Deputy Minister.

59The Board has repeatedly stated that time limits go to its jurisdiction to hear a complaint. In a line of decisions starting with St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB), the Board has addressed different factual scenarios that have arisen and has said consistently that compliance with the time limits in the Regulation is a true precondition to the Board having jurisdiction over a complaint. Hasted/Berezowsky v. Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB) deals specifically with the time limits for sending the notice of proposal to file a complaint, and the Board reached the same conclusion: the time limits in the Regulation go directly to the Board’s jurisdiction to deal with a complaint.

60Therefore, the issue to be decided is when Mr. Barker became “aware of the working condition or term of employment giving rise to the complaint” because once that is said to have happened, the notice of proposal must be filed within 14 days. If the notice is filed outside of that time limit, the Board is without jurisdiction to deal with the complaint itself, which was filed later. The Board’s decisions in St. Amant and Hasted/Berezowsky have interpreted and applied the language in s. 8(1)(4) of Regulation 378/07, namely the section that sets out the time limits around when a notice of proposal, so some discussion of the principles in these carefully reasoned decisions is helpful.

61In St. Amant, the complainant had requested a 3 week unpaid leave of absence. The employer did not provide a timely answer to the request, so on the day after the leave would have ended, the complainant wrote to the employer saying that she would not be taking the leave. One month later, she gave notice to the deputy minister saying that she intended to file a complaint concerning the employer’s failure to provide a timely answer to her request, and she later filed a complaint with the Board. The employer took the position that the Board had no jurisdiction to deal with the complaint because the notice to the deputy minister was not timely.

62The Board found that the complainant had become aware of the working condition or term of her employment that gave rise to the complaint at the same time that she wrote to the employer saying that she would not be taking the leave. The employer’s alleged failure to provide a firm answer to her request, which was the essence of the complaint, had “brought the matter to a head” the day after the leave would have ended, which was also the day the complainant had written to the employer to say that she would not be taking the leave. As a result, the notice given to the deputy minister fell outside the 14 day time limit set out in s. 8 and the Board was without jurisdiction to deal with the complaint.

63In Hasted/Berezowski, the complainants were scheduled for on-call duties throughout their acting assignments, and they performed this work without additional compensation and without complaint or challenge. This was the working condition that gave rise to their complaint, and it ended when the acting assignment ended. In St. Amant, the employer’s failure to provide a timely answer made it impossible for the complainant to take the leave of absence. When the requested period of leave ended, still without an answer from the employer, and the complainant confirmed that she would not be taking the leave, it was clear that the working condition that gave rise to the complaint was fully formed. Hence, the 14-day time limit began to run from that time. In both these cases, the Board found that the complainants became aware of the working condition or term of employment giving rise to their complaints when they had all the necessary facts to ground the complaint. After that point, nothing changed, so it was reasonable to expect that the complainants would begin the complaint process at that time.

64It is important that complaints are filed in a timely manner and within the 14-day time limit whenever possible, with the intended consequence that matters are brought to the employer’s attention as soon as possible. It is equally important that employees have all of the relevant facts and are in a position to know whether they have a basis for filing a complaint. Complaints that are speculative or premature are in no party’s best interests.

65In this case, Mr. Barker learned that his performance rating for 2018-2019 would be “Effective – met most expectations” on October 7, 2019. At the same time, he became aware that this rating was, he alleges, different from the rating he had been told in May 2019 that he was going to receive. Mr. Barker says that he also learned Mr. Magee’s explanation for the lower rating in the same October 7, 2019 meeting: a dip in staff morale. In addition, Mr. Magee expressed his displeasure that Mr. Barker had reported a comment he had made about one of Mr. Barker’s staff reconsidering a promotional opportunity if it meant greater exposure to the problem employee. In other words, this was the date on which Mr. Barker found out about his performance rating and had all of the information that he needed to formulate the view that the lower rating was retaliation by Mr. Magee for seeking direct help from the Regional Director to deal with the problem employee when Mr. Magee would not support him.

66After October 7, 2019, the only additional pieces of information that Mr. Barker received were the clarification of the point that the lower rating meant that he would not receive a 2% salary increase and the knowledge that he would not be able to resolve his concern about the lower rating directly with Mr. Magee. In my view, Mr. Barker did not need either of these pieces of information to be aware of the working condition or term of employment giving rise to his complaint. As of October 7, 2019, he had all the relevant facts and was in a position to file a complaint.

67There are two reasons why the information that Mr. Barker received after October 7, 2019, was not necessary and the working condition that gave rise to his complaint did not change after that date. First, understanding that he would not be given a 2% salary increase due to receiving the “Effective – met most expectations” rating relates to a consequence of the rating, not the rating itself. In other words, the basis of Mr. Baker’s complaint is the “Effective – met most expectations” rating, not the outcome of the rating. Second, informal attempts to resolve a concern do not change the basis of the concern. While settlement discussions, formal or informal, are always encouraged, they cannot operate to change the point in time at which the subject of a complaint can reasonably be said to crystallize. The matter that Mr. Barker was attempting to resolve after October 7, 2019, was not speculative or unclear: it was his “Effective – met most expectations” performance rating, which was not what he expected. As a result, the 14-day time limit for sending a notice of proposal began to run on October 7, 2019, and it expired on October 21, 2019, so when Mr. Barker sent his notice of proposal on November 8, 2019, it was past the time limits. As a result, the Board is without jurisdiction to hear his complaint on its merits.

68I turn briefly to the employer’s objection regarding the timeliness of the complaint (Form 1) that Mr. Barker filed with the Board. Subsection 9(5) of the Regulation provides that where the deputy minister or delegate does not meet with the complainant within 30 days after receiving the notice, the period for dispute resolution expires 30 days after the notice was given to the deputy minister or chair. As noted above, a meeting was held thirty-three (33) days after the notice was given to the deputy minister. Therefore, as there was no meeting “within 30 days” as required by subsection 9(5), the period provided for dispute resolution expired 30 days after the date notice was given. In this case, the dispute resolution period expired 30 days after November 8, 2019 – namely, on December 8, 2019. Pursuant to subsection 10(1), Mr. Barker had fourteen (14) days after the expiry of the dispute resolution period to file his complaint (Form 1) with the Board, or until December 22, 2019.

69On November 27, 2019, Mr. Barker was contacted by an Employee Relations Advisor on behalf of the Deputy Minister’s Delegate seeking an extension of time for the dispute resolution meeting. December 11, 2019, was proposed, Mr. Barker agreed, and the meeting took place on that date as scheduled. Prior to January 11, 2020, Mr. Barker contacted Employee Relations Advisor who had participated in the December 11, 2019 meeting to ask if the Deputy Minister’s Delegate would be responding, and he was assured that the Deputy would do so. Mr. Barker received a response on January 13, 2020, left for an out of country vacation on January 15, 2020, and returned on January 20, 2020. He filed his complaint with the Board on January 22, 2020, nine days after the Deputy’s response.

70The employer does not dispute that Mr. Barker’s meeting with the Deputy Minister’s delegate took place on December 11, 2019, nor does it disagree that an Employee Relations Advisor proposed this date on behalf of the delegate. The date was, however, arranged to accommodate Mr. Barker’s schedule, and in any event, the employer made it clear that the meeting date was without prejudice to any position that the Ministry may take in this matter.

71As stated above, the Board has consistently held that the time limits in Regulation 378/07 are mandatory. If they are not met, the Board is deprived of jurisdiction to hear the complaint. The Board has also consistently held that it does not have the discretion to relieve against these time limits. In other words, in deciding whether a complaint is timely, the Board is not entitled to consider why the time limits in the Regulation were not met.

72The time limits in the Regulation operate independently of the date on which the parties agree to hold the meeting with the Deputy Minister’s delegate and regardless of the reason or reasons for holding the meeting on that date. Where the meeting is held beyond 30 days after receipt of the complainant’s notice, the 30-day time limit in the Regulation continues to apply. Complainants remain free to meet and attempt to resolve workplace complaints with their employer on a mutually agreed-upon schedule, but this does not affect the strictly enforced time limits that are set out in the Board’s enabling legislation. A timely complaint can always be settled and later withdrawn. A complaint that is not timely will always fall outside the Board’s jurisdiction.

73In this case, the deadline for Mr. Barker to file his complaint was December 22, 2019. His complaint was not filed until January 22, 2020, so it is not timely, and the Board is without jurisdiction to hear it on its merits.

74Finally, Mr. Barker’s complaint alleges that his 2018-2019 performance review was a reprisal against him for seeking direct help from the Regional Director to deal with the problem employee when Mr. Magee would not support him and that the Board’s mandatory timelines do not apply to reprisals. More generally, he argues that he was standing up to management inaction in the Geraldton Field Office by bringing Mr. Magee’s mismanagement of the situation to the attention of a higher level of management, and these are the actions of a whistleblower. The employer disagrees, arguing that the complaint does not make out a prima facie case of reprisal under the relevant section of the PSOA.

75In its submissions, the employer argues first, that the complaint does not allege facts that could reasonably fall into any of the categories of wrongdoing; and second, that Mr. Barker did not provide evidence that he disclosed the alleged wrongdoing in the prescribed way, namely to his ethics executive or directly to the Integrity Commissioner.

76“Wrongdoing” is a term defined in section 108 of the PSOA, divided into four categories which can be summarized as actions of a public servant which constitute: (a) a breach of a statute or Regulation, whether provincial or federal; (b) an act or omission that creates a grave and unreasonable danger; (c) gross mismanagement; (d) directing or counselling such wrongdoing.

77On their face, Mr. Barker’s concerns relate to bullying and harassment in the workplace and Mr. Magee’s alleged failure to address these concerns appropriately or to address them at all. However, these assertions do not disclose wrongdoing. Instead, in my view, they disclose that Mr. Barker was unhappy and dissatisfied with Mr. Magee’s management of certain aspects of the Geraldton office. However, even if one were to interpret Mr. Barker’s concerns very broadly and in light of an employer’s legal obligations concerning workplace violence and workplace harassment, they are not a disclosure in accordance with Part VI of the PSOA, which is what is contemplated by the statute as the necessary precondition to the prohibited reprisals.

78The procedure for disclosing wrongdoing is set out in s. 114 of the PSOA, and it contemplates disclosure to a public servant’s relevant Ethics Executive or the Office of the Integrity Commissioner. This is a prescribed pathway, and it allows for the kind of internal investigation by the employer that Part VI of the PSOA contemplates. In contrast, in this workplace, allegations of bullying and harassment are appropriately addressed under the complaint process in the employer’s Workplace Discrimination and Harassment Prevention Policy (WDHPP), which is one of the ways that the employer meets its related obligations under the Occupational Health and Safety Act (OHSA), which in turn has its own complaint and enforcement mechanisms.

79Thus, while it is true that Mr. Barker’s disclosure was to more senior management, he chose this route because he wanted something done about the situation in the Geraldton office. Mr. Barker did not express his concerns to his Ethics Executive or the Integrity Commissioner but to Mr. Magee’s superior. In other words, Mr. Barker was unhappy and dissatisfied with Mr. Magee’s response (or lack thereof), and he wanted to get the attention of his Regional Manager so that someone would take action. In my view, this has none of the characteristics of a disclosure of wrongdoing under Part VI of the PSOA.

Disposition

80To summarize, having carefully considered the allegations and the parties’ submissions, Mr. Barker had all the facts relevant for formulating his complaint as of October 7, 2019. The 14-day time limit for sending a notice of proposal began to run on that day, and it expired on October 21, 2019. Mr. Barker sent his notice of proposal on November 8, 2019, so it is not timely. The dispute resolution period expired on December 8, 2019 - 30 days after November 8, 2019. Mr. Barker had 14 days after the expiry of the dispute resolution period to file his complaint (Form 1) with the Board, or until December 22, 2019. He did not file his complaint until January 22, 2020, so it is not timely. The Board has repeatedly stated that time limits go to its jurisdiction to hear a complaint, so the Board cannot hear the complaint on the merits.

81Moreover, the focus of Mr. Barker’s complaint is his 2018-2019 performance rating, and the remedy that he is asking Board to grant flows entirely from the allegations about that rating. Section 4(2) of Regulation 378/07 is clear that the Board has no jurisdiction over this subject, and in areas where the Board lacks jurisdiction, it has no remedial authority.

82Finally, Mr. Barker’s complaint alleges that his 2018-2019 performance review was a reprisal against him. The procedure for disclosing wrongdoing is set out in s. 114 of the PSOA, and it contemplates disclosure to a public servant’s Ethics Executive or to the Office of the Integrity Commissioner. Mr. Barker did not express his concerns to either of these parties, and his actions have none of the characteristics of a disclosure of wrongdoing in accordance with Part VI of the PSOA.

83The complaint is dismissed and will not proceed to a hearing on the merits.